Firstly, there are two values here; the value of equality and the value of justice. Equality means that each individual receives an equal share regardless of their nature, while justice is giving each person their right according to their type and nature. For example, if you have two children, one tall and one short, according to the concept of equality, you must buy the same size of clothes for each of them at the same price. However, according to the concept of justice, you must buy what suits each child’s situation. The tall child takes what suits him, and the short child takes what suits him. If you give the tall child the same size as the short child in the name of equality, then you have oppressed the tall child and forced him to wear something that does not suit him.
Therefore, every justice is equality in meaning, but not every equality is justice. Islam came to uphold the value of justice. Allah Almighty said: “Indeed, Allah orders justice.” [An-Naḥl 16:90]. He also said: “And when you judge between people, judge with justice.” [An-Nisāʼ 4:58]. He did not say to judge with equality. This is the difference between Islam and socialism or communism. We seek justice while they seek equality.
This is a very important introduction to understand the issue.
Secondly, it is not hidden from any wise person that men and women differ in certain things, and this is something that wise people agree upon. Although men are a cause of reproduction, women are the ones who carry the burden of pregnancy. Women menstruate and bleed after birth, while men do not go through that. In general, men have a physical structure that is based on strength and firmness, while women have a physical structure that is based on tenderness. It is possible to find exceptions to this rule, but this affirms the general principle and does not negate it. Having said that, the roles of men and women have diversified according to their creation and nature. Men have been associated with the meanings of earning, striving, and providing for others, while women have been associated with the meanings of care and nurturing. The Shariah (Islamic law) has defined the duties and rights according to these roles, and has assigned rights and obligations to each one.
Thirdly, regarding the status of men and women in Islam: in terms of religious responsibility, men and women are equally responsible and carry the same trust. Allah Almighty said: “Indeed, We offered the Trust to the heavens and the earth and the mountains, and they declined to bear it and feared it; but man [undertook to] bear it. Indeed, he was unjust and ignorant.” [Al-ʼAḥzāb 33:72]. Here, “man” refers to the created being who is responsible, whether male or female. We can see this clearly in Allah’s address to Adam and Eve together in the dual form when He made both of them responsible: “And We said, “O Adam, dwell, you and your wife, in Paradise and eat therefrom in [ease and] abundance from wherever you will. But do not approach this tree, lest you be among the wrongdoers.”” [Al-Baqarah 2:35]. The dual pronoun reflects involvement, and we also see this in worship. Both men and women are obligated to perform prayer, give zakat (charity), fast, perform Hajj (pilgrimage), and all other obligations. Both are prohibited from major and minor sins, and this is also a general principle.
Fourthly, the concept of deficiency of women in the Shariah: Some narrations have been reported that indicate that women are not equal to men or that women are deficient in intellect and religion. Muslim narrated in his Ṣaḥīḥ book a narration with its due chain of transmission, on the authority of Ibn ʽUmar that the Prophet (peace be upon him) said: “O womenfolk, you should give charity and ask much forgiveness for I saw you in bulk amongst the dwellers of Hell. A wise lady among them said: Why is it, Messenger of Allah, that our folk is in bulk in Hell? Upon this the Prophet observed: You curse too much and are ungrateful to your spouses. I have seen none lacking in common sense and failing in religion but (at the same time) robbing the wisdom of the wise, besides you. Upon this the woman remarked: What is wrong with our common sense and with religion? He (the Holy Prophet) observed: Your lack of common sense (can be well judged from the fact) that the evidence of two women is equal to one man, that is a proof of the lack of common sense, and you spend some nights (and days) in which you do not offer prayer and in the month of Ramadan (during the days) you do not observe fast, that is a failing in religion.”
Many people have used this narration to defame Islam and claim that it diminishes women’s rights. However, I say that deficiency can be of two types: deficiency in honor and deficiency in responsibility. The former is not intended, and the narration does not indicate it. On the contrary, there are many other texts that praise women’s status, such as those about Mary, the wife of Pharaoh, the Queen of Sheba, Khadījah, and the other mothers of the believers. There are also texts that state that mothers are the most deserving of good companionship. Additionally, there are texts that command kindness towards women in general, and all of these praise and honor women. As for deficiency in responsibility, it does not diminish the value of women and affects both men and women equally. Examples of this include:
– Women not praying or fasting during menstruation, which is a means to ease their situation and facilitate their purification. This also applies to men, as fasting is waived for elderly men, travelers, and those who are sick, and those who engage in strenuous work such as bakers, and they make up for it at a later time. Does this mean that a fasting traveler is less valuable than a resident who fasts? Or that a traveler who shortens their prayer is less valuable than a resident who prays in full? No one says this, as both are following the same Shariah. Whoever prays four units of prayer, their prayer is complete, and whoever prays two units while traveling, their prayer is complete, and the difference is only in the type of responsibility, taking into account the situation.
Therefore, we must understand the difference between the two kinds of deficiency.
Fifthly, the impact of differences in responsibility between men and women: The difference in religious responsibility between men and women has resulted in several consequences, including the concept of “qawāmah” (guardianship), as Allah Almighty said: “Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth.” [An-Nisāʼ 4:34]. Thus, men have been granted a conditional authority by Shariah.
Firstly, because Allah has entrusted this duty with the word “faḍḍala” (which means “has given one over the other”), which does not always indicate superiority, although this is often the case in its usage. However, it can also carry the meaning of differentiation, making one distinct by this.
Secondly, because men have been obligated to provide for women, and whoever has been obligated to do something must be equipped with the necessary means to fulfill that obligation and take precautions to prevent anything that would violate it. So how can a man be obligated to provide for and support his wife without having the right to direct and command her? Therefore, we say that “qawāmah” is a consequence of this obligation and the division of responsibilities, and it does not diminish women’s rights, as they are the ones being taken care of in this division. This is similar to working in a company; the company pays its employees and, in return, determines the rules, hours, and methods of work. Anyone who wants to benefit from the company must comply with its rules, and the company has authority (qawāmah) over those in it based on what it has spent, even if it benefits from them.
The second issue resulting from the differences in religious responsibility between men and women is the matter of inheritance. Many people take pleasure in criticizing Islam and Shariah for this issue, claiming that they discriminate between people. However, I say:
1- The Islamic Shariah is a complete system and not a collection of disparate pieces. This means that whoever has obligations also has rights. The Shariah has lifted the burden of provision from women and made it an obligation on men, on the contrary, women are always being provided for. In her father’s house, her expenses are on her father, and in her husband’s house, her expenses are on her husband. At the time of marriage, she deserves a dowry that has no limit, and in case of divorce, she is entitled to two kinds of financial support, one for the waiting period and the other for alimony. After that, she returns to the care of her family. When her husband dies, she inherits from him a portion of her own possession, even though she returns to the care of her family. This is the system.
As for the man, he is the guardian; he is the guardian as a father, and he is the guardian as a husband, and he is the guardian as a brother in the absence of the father, and if he falls short in this, he is at fault. Justice requires that whoever is obligated to an additional duty be given reasons that will assist him in performing this duty. Allah Almighty says: “Allāh does not charge a soul except [with that within] its capacity.” [Al-Baqarah 2:286] He also says: “Allāh does not charge a soul except [according to] what He has given it.” [Aṭ-Ṭalāq 65:7] Therefore, the Sharia has stipulated that in certain situations, a man may take a larger share than a woman in order to fulfill his obligations.
2- The issue of a man receiving a larger share than a woman in inheritance is not an absolute rule in all cases. There are situations in which a woman may receive a larger share than a man, including:
– If a daughter does not have brothers or sisters she takes half of the inheritance, while the rest of the heirs share the other half, even if there are male heirs. For example, if a man dies leaving behind a daughter, a wife, a father, and a mother, the daughter receives half, the wife receives one-eighth, the mother receives one-sixth, and the father takes the remainder as stipulated by Islamic law. Therefore, if we look at the father’s share – who is a male – we find it to be less than the daughter’s share, who is a female.
– Similarly, if there are two daughters, they together take two-thirds of the inheritance, which is the largest share. For instance, if a man dies leaving behind two daughters, a wife, and a brother, we find that the two daughters together take two-thirds, the wife takes one-eighth, and the brother takes the remainder as stipulated by Islamic law. This share is much less than the share of the daughters.
These are just some examples, and there are many more. Sometimes we find that some males do not receive anything, while females take the majority of the inheritance, as in the case of siblings in the presence of a father and mother. The mother takes one-third of the inheritance, while the brothers are completely excluded by the father and do not receive anything.
Therefore, the system that governs inheritance in Islam is based on justice, not equality, as equality in this case would be unfair to those who are financially responsible.
3- The Western trends, which constantly talk about equality, do not imply justice. When a husband dies, his wife inherits his wealth as it is considered “marital property.” She may then marry another man and spend this money on him, while the rights of the orphans, who are the actual heirs, are neglected. Moreover, the deceased husband may have elderly parents who are in need, yet they do not receive anything after caring for their son for years. Is this justice or even equality among those who are in need? What kind of mind do they have to judge such matters?
Thirdly, the issue of differentiation in testimony: It is claimed that Islam has diminished the status of women in the matter of testimony, as the Quran has made the testimony of a man equivalent to that of two women. Allah Almighty says: “And bring to witness two witnesses from among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses – so that if one of them [i.e., the women] errs, then the other can remind her.” [Al-Baqarah 2:282] Likewise, the prohibition of a woman’s testimony in the matter of Ḥudīd (prescribed punishments) is agreed upon by the four schools of Islamic law.
I say: Testimony can be divided into two types: Testimony of bearing witness and testimony of performance. The testimony of bearing witness is when a person is called upon to witness, understand, and keep in mind what is happening in situations such as marriage contracts, sales, rentals, exchanges, and other similar situations. Testimony of performance is when a person is summoned to witness and say what they have seen or heard in a court of law, subject to certain conditions. For both types of testimony, there are conditions that apply equally to men and women, such as being of sound mind, maturity, knowledge of the incident, and observation of the incident, as well as some specific conditions. This is a simplified introduction about testimony.
As for the first type of testimony, it is applicable to both men and women. Women have narrated the Quran with chains of transmission, transmitted hadith with chains of transmission, and conveyed knowledge. They also have the right to bear witness to contracts of all kinds, as is the opinion of the Ḥanafiy school of Islamic law and others.
As for the second type of testimony, women also have the right to bear witness and perform it. The Ḥanafiy school of Islamic law has only exempted them from the matter of Ḥudūd (prescribed punishments). This exemption is not meant to diminish the status of women, but rather to take into account their circumstances within the integrated system of Sharia law. Women are, by default, characterized by modesty, seclusion, and non-interference, and it is desired for them to be relieved of any embarrassment. To provide further detail regarding the types of situations, I say that the circumstances of women in testimony differ based on the specific situation:
The first type: Women’s testimony in matters that men cannot witness and that are specific to women. All four schools of Islamic law have agreed to accept women’s testimony in these matters. Imam Shāfiʽiy, may Allah have mercy on him, and others have narrated this agreement. Some of these matters that only women can witness include breastfeeding, hidden defects, childbirth, and menstruation.
The second type: Women’s testimony in financial matters. All scholars are in agreement that women’s testimony is accepted in financial matters, where having two women for the testimony is required. However, there is a difference of opinion as to whether their testimony is accepted alone or whether the presence of a testimony of a man is required. The Mālikiy school of Islamic law allows their testimony to be accepted alone, provided that the plaintiff takes an oath, which is a valid argument.
The third type: Women’s testimony in Ḥudūd (prescribed punishments) and Qiṣāṣ (authorized retaliation):
All four schools of Islamic law have agreed not to accept women’s testimony in Ḥudūd and Qiṣāṣ. However, some scholars have allowed women’s testimony in this regard, such as the opinion of ʽAṭāʼ and Ḥammād, which was also supported by Sufyān in one of his opinions regarding Qiṣāṣ but not Ḥudūd. It was also narrated from Ṭawūs and chosen by Ibn Ḥazm and Ash-Shawkāniy.
The fourth type: Women’s testimony in matters other than financial, Ḥudūd, Qiṣāṣ, and matters that only women can observe such as lineage, marriage, divorce, manumission, and allegiance. The scholars of Islamic law have differed in this matter, and although the majority prohibits it, the Ḥanafiy school of Islamic law permits it, which is the strongest and most likely opinion. Abū Bakr ibn Abī Shaybah narrated from Hind bint Ṭalq who said: “I was with some women and a young boy was covered up with a garment. A woman stood up and passed by, then she tripped and fell over the boy. The mother of the boy said, “I swear by Allah, you have killed him.” Ten women, including myself, testified before ʽAliy, may Allah be pleased with him, and he ruled that she should pay the blood money and he helped her with two thousand (dirhams).”
Moreover, ʽAṭāʼ, may Allah have mercy on him, narrated that ʽUmar, may Allah be pleased with him, allowed women to bear witness along with men in divorce and marriage.
If we reflect on what has been mentioned above, we find that there are two main principles regarding women’s testimony:
The first is to relieve women from any embarrassment, and the second is to avoid the possibility of error or being influenced by someone. In Islamic Sharia law, women are protected, and the guardian – whether a husband, father, brother, or uncle – may influence her in a specific direction. Islam came to relieve her from this. Allah Almighty says: “and has not placed upon you in the religion any difficulty.” [Al-Ḥajj 22:78] He also says: “Allāh intends for you ease and does not intend for you hardship.” [Al-Baqarah 2:185]
Finally, I say that Islam has also established guidelines for testimony that apply to men as well, and it cannot be said that these guidelines diminish the value of men. For example, a man’s testimony is not accepted if it benefits him personally or if it relieves him of a burden. The testimony of an inheritor for their deceased relative is not accepted in matters related to the inheritance, nor is the testimony of a guarantor for the guaranteed party in cases of fulfillment or disclaiming. The majority of jurists agree that the testimony of one spouse is not accepted for the other, except for Ash-Shāfiīy. In addition, the testimony of an ancestor is not accepted for/against his/her offspring, and vice versa. This means that the testimony of a father is not accepted for his son, nor is the testimony of a son accepted for his father, and the testimony of an enemy against another enemy is not accepted. This is based on the Prophet’s saying, peace be upon him, as narrated by Abī Dawūd: “The testimony of a deceitful man or woman, of an adulterer and adulteress, and of one who harbors rancor against his brother is not allowable.” Rancor means hatred and enmity. All of these guidelines are designed to prevent someone from being a witness, and it cannot be said that they diminish equality between genders. Rather, they take into account the circumstances of people, and the default principle is that anything that involves doubt or suspicion is not admissible as evidence, and this applies to both men and women.
Regarding the issue requiring multiple women for bearing witness, I say that the concept of multiplicity applies to both men and women. I many matters, the testimony of one man is not considered, and two male witnesses are required. In cases of adultery and false accusation, four male witnesses are required, and this does not diminish the value of men. As for women, multiple witnesses are required for certain reasons, such as:
– The possibility of error or forgetfulness.
– The possibility of being influenced by men.
– Strengthening the heart of the woman when she sees one or more women of her own gender bearing witness with her.
All of this is meant to protect women and their rights. This is what Allah has favored women with regarding their testimony.
Fourthly, the differentiation between men and women in matters of clothing: This is also something that is raised by proponents of this claim:
1- If we look at the clothing of men and women throughout all eras and civilizations, including primitive societies and modern societies, we notice a difference and variation between the attire of men and women. This indicates that the matter is related to the nature of each gender. What is required to be covered by men, according to tradition, is covered by women and more. In the era of Bedouin society, men covered their private parts while women covered their private parts and also covered their chests. I mention this to emphasize the issue of differentiation, and that it is a fundamental human matter. Religions came with refining and establishing rules for it.
2- To judge Islamic Sharia in this matter, it is necessary to understand the philosophy of Islam and its view of women. Women in Sharia are not just a creation, but they are the mother, sister, wife, and daughter. This takes us back to the principle that Sharia has preserved for women, which is modesty. No one wants to expose any of such women. Every Muslim wants his mother, sister, and all other women to be unexposed and protected, even if he himself is liberal. Sharia came and agreed with this desire and made modesty the principle for women, which led to the regulation of clothing in a way that is consistent with this principle.
3- Islam has also defined the clothing of men and prohibited them from wearing certain types of clothing, such as clothing that is associated with fame or women’s clothing or clothing specific to another religion. Not only that, but it also prohibited men from wearing thin clothing that outlines the private parts, and it forbade them from wearing clothes made of natural silk.
Therefore, the claim that women are not equal to men in matters of clothing overlooks the nature and purpose of clothing for each gender. For example, men are prohibited from wearing long garments with the intention of showing off, while it is allowed for women because it is more modest for them. Would anyone argue that the length or shortness of a garment for one gender is an advantage for them and a disadvantage to the other?
4- The truth is that even those who say that Islam does not treat genders equally in clothing do not tolerate it themselves. What do these people say when they see a man wearing a dress or an item of clothing that is specific to women? In most cases, they would attribute him to a third gender, simply to maintain stability and agree that there is clothing for men and clothing for women, which is exactly what Islam says.
Perhaps some Muslims have a share due to their religious strictness in developing this understanding. The respected sisters who wear the niqāb, and yet still appear in every gathering and profession, give the impression that this is the clothing of Muslim women, without any other options. This clothing is usually black and covers everything except the eyes, and while this may be one of the chosen opinions, it is contrary to the default principle. However, I must say that many secular societies set restrictions on men’s and women’s clothing, and some institutions and armies do so as well, and no one says that they do not have equality compared to the rest of society.
5- In Islam, women resemble a protected gem and a hidden pearl, and this quality of theirs requires us to be excessive in covering them from the eyes of others. We and others are equal in adapting this view. Our women are not like goods that are displayed in shop windows and advertisements, like a commodity traded by hands, undressing them while people are watching.
6- The clothing of women also distinguishes itself from the clothing of men as a barrier against the means of temptation if a woman wears thin cloths that reveal her charms. This is to protect everyone and to protect women from the danger of being attacked. We hear and see the phenomenon of harassment of women, which, if anything, indicates the perception of each gender towards the other. Women, in general, are sought and desired, and Islam, with its preventive principles, has the principle of blocking the means of temptation. The evidence for this is that a woman can wear whatever she wants in her home, and her private parts and what should be covered differ depending on the viewer being a maḥram (permanently unmarriageable kin) or not. Therefore, women are not required to always dress in a certain way. This is what concerns the issue of clothing.
Fifthly, the claim of discrimination between men and women in some general matters, including the freedom to travel, work, and have guardianship over men. As for the freedom to travel, Islam did not prohibit women from traveling, but it set guidelines for it, such as obtaining permission from her guardian or husband, and if she does not have one, then it is permissible without permission. This is also to protect her, consider the marital situation, and arrange the appropriate responsibilities in the marriage contract, in the case of marriage, or under guardianship in the case of being unmarried. An employee who is sponsored by his employer does not travel without the permission of his sponsor, and they are governed by a law that obliges the sponsored person to inform the sponsor, and no one says that this is against equality. Nonetheless, if a woman travels, Islam encourages having a maḥram to protect her, take care of her needs, and provide her with company. She can also travel with a trusted company, even if there is no maḥram according to the Shāfiʽiys and other scholars.
Therefore, the philosophy of the Sharia here is based on protection, safeguarding, and avoiding suspicion. Men usually do not need that kind of protection, so each person is given according to their needs and capabilities. This is a ruling on regular matters, and it does not include irregular cases. In general, we can say that Islam has given men and women the right to travel, and has set guidelines for women that govern the issue of travel according to their nature and what the Sharia intended for them. Similarly, women are authorized to work under certain conditions.
As for the issue of authority, this is also one of the issues that advocates of equality often misunderstand. They only understand one aspect of authority, which is general authority. Is a woman prohibited from having authority? To answer this, we need to understand what authority means: Authority, in terminology, is a legitimate right that enables the owner to act correctly on behalf of oneself or others, by force or by choice. Authority is not a single type as they portray it, but it has multiple considerations:
1- With respect to the authorized person: It is divided into exclusive authority, in which the guardian takes care of himself independently, and inclusive authority, which enables him to act correctly on behalf of someone else.
2- With respect to the scope: It is divided into general authority, in which the owner has the right to act correctly on matters of public concern, and limited authority, in which the owner has the right to act on a specific matter, such as a father with his children.
3- With respect to the source: It is divided into intrinsic authority, in which the owner derives the right of authority from themselves, not from someone else, and acquired authority, in which the authority is obtained by delegation from someone else.
4- With respect to its subject: Authority over a person, such as custody, and authority over property, such as agency.
If we look at many of these respects, we find that they are common between men and women, and the only exception to this is the position of public or supreme authority, as the jurists say, and what it entails. This exception is not a form of discrimination as much as it is a consideration for the nature of men and women. The gathering of people together in a space is not only governed by a theoretical consideration, but also by considering the possibility of implementation and ease of application without causing harm to others. When we look at the reality of people, both Muslims and non-Muslims, we find that this is the custom of people since ancient times. In fact, in most developed countries, as they claim, women are practically only able to hold the positions that Islam has allowed for them. For example, in America, there is not a single female president, and the number of women in the largest court there is very small and still does not equal the number of men. Additionally, most executive members are men, and the same is true for military leaders and active state agencies. On the other hand, we find a significant presence of women in the field of teaching, childcare, nursing, administrative work, and entertainment programs. So, is there a difference in application between advocates of equality and advocates of Sharia?
The answer: We only differ in that we align with the principle [of justice in dealing with women] while they promote the principle without implementation.
Finally, after this presentation of the most important things raised by those who accuse Islam and Sharia of overstepping in this matter, I say:
1- Islam, from its general principles, is about justice among creation, and the entire Sharia is justice, wisdom, and benefit.
2- There is a difference between justice and equality; the former gives each person according to their situation, while the latter gives each person an equal amount. We have proven that equality is not always just in all situations.
3- There is a contradiction among those who make these claims between theory and practice. While they advocate for equality, their actions in various matters do not reflect that, but rather involve discrimination.
4- The judgment on Sharia cannot be made by examining a single issue and passing judgment on it. Sharia is a complete system, meaning that a reduction in a woman’s rights in one area may be compensated for by an increase in her rights in another area, or it may be caused and justified by a particular circumstance or time.
5- Many of the alleged discriminatory issues raised by these individuals are refutable, and we have demonstrated that in matters of inheritance, authority, and others.
6- The Ḥadīths that mention the husband’s rights over his wife do not mean a belittlement of the value of women, but rather refer to the arrangement of rights. For example, the Ḥadīth that talk about the worthiest people to accompany does not imply that men are superior to women, just because men (in the Ḥadīth, refer to as father) were mentioned once and women (in the Ḥadīth, referred to as mother) were mentioned three times. Rather, it is a consideration for the state of motherhood, as different situations lead to different rights for the same person. Women have rights over their families and children, and they also have rights to their husbands, and so on.
7- Islam distinguishes between men and women in terms of roles, and this differentiation leads to differences in rulings, which sometimes result in differences in responsibilities and honors. Allah says in the Quran: “And the male is not like the female.” [Sūrat ʼAāl ʽImrān 3:36]. Prophets and messengers throughout history were men, the Imams were men, the Caliphs were men, and most judges were men. We do not deny this fact, and we should not deny it to please advocates of equality. We have explained the reasons for this earlier.
8- It is incumbent upon the preacher and the orator to balance their words and give each person their due right. They should not focus on praising or discriminating against a particular group, but rather present what the Sharia has provided in a balanced way, mentioning the rights and responsibilities of both men and women.
After all, May Allah grant success.
Fatwa by Dr. Khālid Naṣr