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Laws of Religion

Laws of Islam Concerning Women and Men

 

22.  Trials and Punishments of Men and Women

from the Qur’an,

major hadith collections

and Islamic jurisprudence

 

 

Trials and Punishments of Men and Women

From the Qur’an

 

The Qur’an says that a contract for a loan must be witnessed either by two men or, if two men are not available to be witnesses, by a man and two women.[1] (Thus, under these circumstances, two women are equivalent to one man.)

 

Trials and Punishments of Men and Women

From the hadith compilations of al-Bukhari and Muslim

 

Muhammad said that the fact that the testimony of two women as witnesses is equal to that of one man shows that women have a mental deficiency in common sense.[2]

 

Trials and Punishments of Men and Women

From Islamic Jurisprudence (fiqh/sharia^§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

 

Contents

 

Trial procedures and witnesses

 

Punishment for murder

 

Expiation for unintentional killing

 

Compensation for injury

 

Killing a fetus

 

Punishment for apostasy

 

Punishment for theft

 

Killing women and children in war

 

 

Trial procedures and witnesses (jurisprudence/fiqh/sharia). The scholars^* agree that the governing leader may act as a judge and also appoint judges.[3] Most say that a judge must be a free, sane, legally upright and adult Muslim male, and al-Shafiʽi says that only someone trained and found competent to interpret the law can be a judge. But Abu Hanifa says that a person without specialized legal training may be a judge and that a female may be a judge in a lawsuit over money.

 

A witness in a legal case must be a free legally upright adult Muslim male who is not accused of any transgression.[4] While cases of unlawful sexual intercourse can only be decided if there are four witnesses, two witnesses suffice in other cases.[5]

 

Reliance of the Traveller (Shafiʽi school) explains that only testimony from four male witnesses is acceptable for accusations of unlawful sexual intercourse or sodomy.[6] Also, the testimony of two male witnesses is required in legal cases that do not concern property, such as those concerning marriage or the imposition of punishments such as flogging or execution. The testimony of women in such cases is not accepted.[7]

 

In suits over money, two male witnesses are required; one male witness supported by two female witnesses is also sufficient.[8] (Thus, two supporting female witnesses are equivalent to one male witness.) Abu Hanifa says that the testimony of women is admissible in suits concerning money and also in personal matters like divorce, marriage and the freeing of slaves.[9]

 

The scholars agree that women’s testimony is valid even without the corroborating testimony of a man on issues that a woman may have unique knowledge of such as childbirth, the consummation of a marriage and bodily defects that other women may have. Abu Hanifa specifically permits women’s testimony to be admitted on the subject of another woman’s body between the navel and the knees.[10] Concerning the witnessing of things that only women see, Reliance of the Traveller (Shafiʽi school) explains that in such cases, involving things that men do not normally see, testimony to prove the case requires two male witnesses, one male and two female witnesses, or four female witnesses.[11] (Again, two female witnesses being equivalent to one male witness in such cases.)

 

While al-Shafiʽi and Malik say that no non-Muslim can ever give legal testimony, Abu Hanifa says that non-Muslims may testify about a dying person’s statement of bequests when travelling.[12] A law-breaker may act as a witness after he has repented, though Abu Hanifa says that this does not apply to those who have falsely accused a woman of unlawful sexual intercourse,[13] as discussed elsewhere.

 

Testimony of certain people who may favor or disfavor the subject of the testimony may be rejected as evidence, including a parent testifying in support of a son or a son testifying in support of his parent.[14] Malik and Abu Hanifa say that testimony about the spouse of a witness must be accepted while al-Shafiʽi says that such testimony may be rejected.[15] The testimony of a brother about his brother is to be accepted unless he is trying to shift blame from himself to his brother, though Malik qualifies this by noting that such testimony may be rejected if the brother testifying is totally dependent upon the brother he is testifying about.[16] If a witness is testifying about someone who is his enemy, al-Shafiʽi and Malik say that his testimony can be rejected but Abu Hanifa says it must be accepted.[17]

 

 

Punishment for murder (jurisprudence/fiqh/sharia). A person who intentionally murders another is liable to retaliation (execution).[18]

 

The scholars^* generally agree that retaliation (execution) is averted if the heirs of the victim agree to pardon the murderer.  If the heirs do pardon the murderer, they may demand blood money (diya) from him.[19]

 

The scholars agree that if some of the victim’s sons pardon the murderer, he is not liable to execution.[20] However, they disagree concerning the role of female heirs and minors in pardoning a murderer. Malik says that the views of female heirs have no weight against the views of the male heirs concerning pardoning of murderer, just as a wife’s views generally do not negate her husband’s decision when they disagree. In Abu Hanifa’s view, male and female heirs have equal say in pardoning a murderer from execution and in relinquishing right to blood money.[21]  Al-Shafiʽi and the Shafiʽi school hold that male and female heirs and even minors have equal say in pardoning murderer from execution and in relinquishing right to blood money[22] and that if even one of those entitled to retaliation decides to forego it, then there is no retaliation (execution) and all those entitled share in the blood money (diya).[23]

 

It is agreed that retaliation (execution) may result from murder of a person of equal or higher status with regard to being a Muslim or non-Muslim, free person or slave, male or female. Also, most jurists agree that a man who murders a woman is liable for execution.[24] Reliance of the Traveller (Shafiʽi school) explains that females are entitled to retaliate against males for death or injury to a family member, just as a child may retaliate against an adult, or a poor person against a rich one.[25]

 

It is agreed that a pregnant woman is not to be executed until her baby is born.[26] Reliance of the Traveller adds that the baby must be capable of surviving on someone else’s milk before its mother can be executed.[27]

 

 

More details from Islamic jurisprudence (fiqh/sharia) concerning punishments for murder

 

 

Expiation for unintentional killing (jurisprudence/fiqh/sharia). The scholars^* agree that for unintentional killing of a free man, expiation must be performed. In such cases, payment for the death of a free Muslim man is 100 camels or 80 camels plus 20 goats.[28] For people who deal in gold and silver and whose life does not involve camels, payment may be made in gold or silver.  The amount for the life of a free Muslim man is based on the value of 100 camels.[29] The blood-money paid for the life of a woman is one-half that paid for a man.[30]

 

 

More details from Islamic jurisprudence (fiqh/sharia) concerning expiation for unintentional killing

 

 

Compensation for injury (jurisprudence/fiqh/sharia). Al-Shafiʽi and Abu Hanifa say that the compensation for injuring a woman is one-half that for injuring a man. Malik says that the compensation for injuring a woman is the same as that for a man up to one-third the blood price (100 camels); then it becomes one-half that of a man.[31]

 

 

Killing a fetus (jurisprudence/fiqh/sharia). Compensation must be paid for injury that results in the loss of a women’s unborn baby if the woman is free or if she is a slave carrying her master’s child.[32] The baby must be born without life for compensation to be required. Al-Shafiʽi says that compensation needs to be paid only if the killed fetus was developed enough to have the spirit of life. According to Malik, a miscarriage with any substance of flesh or even just a clot is sufficient to establish the need for compensation.[33]

 

Most scholars agree that amount to be paid for killing fetus of a free Muslim woman is one-twentieth the blood-money value of the mother’s life.[34] If the mother of the killed fetus is a slave, al-Shafiʽi and Malik say that the compensation to be paid is one-tenth the value of the slave carrying the baby. Abu Hanafa agrees if the dead fetus if female; if it is male, then the compensation is one tenth of his value.  Reliance of the Traveller (Shafiʽi school) says that the blood money for killing a fetus of a slave is one-tenth the blood money value of the mother or one twentieth that of the father.[35]

 

If the mother of the killed fetus is a dhimmi^**, the compensation for the death of her unborn child is one-tenth the value of the blood-money on the mother’s life (which differs from school to school).[36]

 

 

Punishment for apostasy (jurisprudence/fiqh/sharia). While scholars agree that a male apostate from Islam is to be executed and most agree that a female apostate is also to be executed, Malik says not to execute a female apostate.[37]

 

 

Punishment for theft (jurisprudence/fiqh/sharia). Theft leading to the punishment of amputation, generally occurs when something exceeding a minimum specified value is taken from another person without permission. The minimum value varies from school to school. To be subjected to amputation for theft, a person must be legally competent, but may be male or female, free or slave, Muslim or non-Muslim.[38]

 

 

Killing women and children in war (jurisprudence/fiqh/sharia). Al-Shafiʽi says that killing of women and children in battle in a sudden night attack cannot be avoided so no punishment or compensation, retaliation or atonement results. However, such killing in battle is prohibited when the women and children can be distinguished from the men in battle.[39] This applies only to Muslim women and children because killing of non-Muslim women and children is not forbidden and does not result in punishment, retaliation, compensation or atonement.[40] Reliance of the Traveller (Shafiʽi school) says that women and children may only be killed in battle if they are actively fighting against the Muslims, though it is permitted to kill old men even if they are not actively fighting.[41]

 

________________

 

^*Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

^**A dhimmi is non-Muslim who agrees to follow certain rules of behavior,[42] wears distinctive clothing that Muslims do not wear,[43] pays a poll tax (jizya),[44] and is protected by the Muslim rulers.[45] For al-Shafi‛i[46]  and the Shafi‛i school[47] only Jews, Christians, and Zoroastrians (or Magians) may be dhimmis but Malik[48] and the Hanifi[49] say that even polytheists may be dhimmis.

 

^§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

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Abbreviations used in footnotes:

QR:   Qur’an, with surahs (chapters) and ayahs (verses) numbered as in most modern translations, including those found here, here and here.

BK:    Hadith collection of al-Bukhari as found here (USC/CMJE website) and here (ebook download). In a few instances, the hadiths on the USC website differ from those in the ebook download, either by having slightly different numbering of the hadiths or because the hadith appears only on the USC site and not in the ebook download. Such cases are noted in the footnotes by putting either “(USC)” or “(ebook)” after the relevant hadith number when it applies to only one of these two sources. Part or all of the hadith collections of al-Bukhari, with somewhat different numbering systems, can also be found here, here and here.

ML:    Hadith collection of Muslim as found here and here. Part or all of the hadith collection of Muslim, with somewhat different numbering systems, can also be found here and here.

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Full text online and download for Volume 1 are here and here and for Volume 2 are here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA.  Reliance of the Traveller can be found here and here.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.