. G F (cont.)

2 Ahmad ibn Taimiya, lkhtiyaaraat ibn Taimiya (Cairo: Matbaah al-Sunnah al-Muhammadiyah, 1369 A.H.), p. 359; Muhammad ibn al-Qayyim, llaam al-Muwaqieen an Rabb al-Alameen (Beirut: Daar al-Kutub al-Hadeetha, 1 389 A.H.), vol. 1 , p. 1 00. These two were also quoted in al­ Mutlaq, p. 53. Commentary on the Forty Hadith of al-Nawawi the testimony of women is not permissible in the cases of hudood."1 Abdul Razzaaq also records something similar from Ali ibn Abu Taalib. They also argue that such crimes are usually committed under particular circumstances, involving crime, fear and so forth. Under such circumstances, it would be difficult for a Muslim woman, who is usually sheltered from such things, to be considered a sound and trustworthy witness. Ibn Hazm argues that in every type of case, the testimony of a woman is accepted and is equal to half that of a man. Therefore, for example, the witness of eight women would be sufficient to prove the act of illegal sexual intercourse. This was also the opinion of Ataa ibn Abu Ribaah and Hamaad ibn Abu Sulaimaan of the early scholars. Taawoos said that the woman's testimony should be accepted in every matter except illegal sexual intercourse as, he said, she should not be looking at such a matter (meaning that a woman's extreme modesty and shyness would prevent her from seeing such an act and being able to witness or testify about it later). The evidence for this view is the generality of the hadith above stating that two women's testimony is equal to that of one man. Furthermore, the narration from al-Zuhri quoted above is not acceptable. The chain contains weak narrators and al-Zuhri's narrations directly from the Prophet (peace be upon him) (that is, his mursal reports) are considered weak. Abdul Razzaaq presents a report in which Umar ibn al-Khattaab used the testimony of a man's wife against him and punished the man for drinking alcohol. Ibn al-Qayyim also presents an incident in which Umar was about to punish a person for illegal sexual intercourse on the basis of the testimony of only one woman, who claimed she was raped, along with circumstantial evidence. When he discovered that the evidence was forged, he did not punish the person. If these reports are authentic, it seems that the strongest view would be that female testimony is accepted and acted upon even in cases resulting in hudood punishments. The Meaning of Bayyinah In this hadith, the Prophet (peace be upon him) stated that the plaintiff or claimant must provide the bayyinah or "proof' for his claim. As stated above, many writers seem to think that bayyinah refers only to witnesses. Indeed, al-Bugha and Mistu claimed a consensus on that point. However, that does not seem to be correct. The meaning of bayyinah is much more comprehensive and also applies to means of proof other than witnesses. Al-Mutlaq stated, "Al-bayyinah is a noun that encompasses all means of establishing the truth. Providing witnesses is one of its more important means and that is why he [the Prophet (peace be upon him)] told the claimant, 1 This statement was recorded by Abdul Razzaaq, ibn Abu Shaibah and al-Baihaqi. Hadith #33: "Were People to be Given . . . " 'Your witnesses or his oath. "'1 According to Mahmassani, "Bayyinah (evidence) in the linguistic sense means the evident or obvious. In law it has been used to connote 'strong proof . . . because it makes the truth evident and obvious. "2 lbn al-Qayyim argues that the concept of bayyinah is something that is misunderstood by the jurists. They have greatly restricted its meaning while there is no call to do so. He wrote, Al-bayyinah in the speech of Allah and His Messenger and the speech of the Companions is a word for everything that makes the truth plain and clear. It is more general than the jurists use of the word bayyinah, as they restrict it to two witnesses or a witness and an oath . . . For that reason, they make a mistake in their understanding of the texts and apply them in a way that they are not meant to be applied . . . The word bayinnah in the book of Allah is a word used for anything that makes the truth clear. Allah has said, "Verily, We sent our messengers with clear proofs (bayyinaat)" [al­ Hadeed 25] . . . [lbn al-Qayyim quotes a number of verses and then continues:] There are numerous examples of that nature. The word bayyinah was never restricted to mean witnesses. Indeed, the Book [of Allah] never uses the word in that sense. If that is known, then the statement of the Prophet (peace be upon him) to the claimant, "Do you have any bayyinah?" and the statement of Umar, "The burden of bayyinah is upon the claimant,". . . means, "Do you have any proof that will demonstrate the truth, being either witnesses or some evidence." Under all circumstances, the Lawgiver intends to make the truth evident by any means of proof available . . .