All perfect praise be to Allah the Lord of the Worlds. May Allah`s peace and blessings be upon our Prophet Mohammad and upon all his family and companions.
Testimony is derived from witnesses, indicating those who are present. Allah has directed us to give testimony in financial and commercial contracts to safeguard rights and make their enforcement easier. He states: "And take witnesses when you conclude a contract" {Al-Baqarah: 282}. He has also guided us to provide witnesses in transactions, which are related to commercial dealings. He 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 the women errs, then the other can remind her" [Al-Baqarah: 282]. The command in these two verses is recommended, not obligatory.
As long as the purpose of testimony is to protect rights, the distinction between masculinity and femininity in itself does not play a role. The foundation of testimony is based on two main factors:
First: The individuality and characteristics of the witness. Imam Al-Razi explained this when interpreting the previous verse, where Allah 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" [Al-Baqarah: 282]. Al-Razi stated: "This is similar to Allah's statement in divorce: 'And bring to witness two just men from among you' [ At-Talaq: 2]. It is known that not everyone is qualified to bear witness. The jurists have outlined ten conditions for accepting testimony: the witness must be free, of legal age, Muslim, just, knowledgeable about the matter they are testifying to, not using the testimony for personal gain, not using it to harm others, not known for frequent errors, not known for lacking good character, and not harboring enmity towards the party they are testifying against" [Al-Tafsir Al-Kabir 7/95]. Based on these conditions, gender is not a determining factor in accepting testimony.
Second: The witness's proximity to the incident, which allows them to be well-informed about the matter they are testifying to. This qualification enables them to provide accurate testimony. The distinction in the testimony of men and women lies not in their gender itself, but rather in their usual proximity to or distance from the events. For example:
Issues specific to women, such as childbirth, virginity, and personal defects of women, are limited to the testimony of women alone. Imam Shafi'i, may Allah have mercy on him, said: "Regarding childbirth and personal defects of women, I have not come across any opposing opinion; it is permissible for women to testify in such matters, and men are not allowed to testify alongside them" [Al-Umm 7/92].
Imam Nawawi, may Allah have mercy on him, explained the reason for this by saying: "Matters that men cannot have direct knowledge of, but women are generally more knowledgeable about, their testimonies are accepted individually. Such matters include childbirth, virginity, clothing, patching (clothes), braiding (hair), menstruation, and breastfeeding" [Rawdat al-Talibin wa 'Umdat al-Muftin 11/253]. Therefore, the criteria for accepting the testimony is based on direct knowledge and expertise in the specific matter, rather than solely on gender.
In such private matters concerning women, which are usually known only to a few women and not commonly accessible to men, the Hanafi school of thought accepts the testimony of a single woman. This is due to the sensitive and private nature of such issues. Imam Sarakhsi, a Hanafi scholar, stated: "This is further confirmed by the testimony of a single free and just Muslim woman according to our school, although having two or three witnesses is preferable" [Al-Mabsut 16/143].
If we look at financial and commercial transactions and the related contracts such as reversal of sale/cancellation, mortgage, borrowing, and others, we find that the majority of witnesses in these cases are men. This is because the majority of those engaged in commercial activities and transactions are men in the first place, and these matters are the focus of their attention and concentration. Therefore, the testimony of men is given precedence over the testimony of women in such cases. On the other hand, in matters that are specific to women's affairs, the testimony of women is given precedence over men's testimony. The reason for this distinction is not based on gender bias or favoring one gender over another, but rather because men are more closely involved and connected with these specific matters. Hence, the emphasis in these matters is placed on men, unlike other matters that are not commonly accessible to men, where the focus and expertise of women become more significant. This approach in Islamic legislation is characterized by its practicality in viewing things and aims to facilitate matters for people and ensure justice among them.
In conclusion, in financial matters, testimony is established with the testimony of two men or one man and two women, and it is not established with the testimony of women alone, such as in matters of sales and reversal of sale. On the other hand, in matters that are not commonly accessible to men, testimony is established with the testimony of women alone, as in cases of childbirth and breastfeeding. This approach ensures the preservation of rights and honors both men and women. And Allah the Almighty knows best.
