They Speak of Woman!

One of the leaders of our men of thought and of the judiciary. President of the Court of Cassation and professor of "Islamic Sociology" at the Institute of Oriental Letters of Saint Joseph University. Here he analyzes the Eastern woman's position with respect to the judiciary.

1 - Is woman, especially in the East, fit to practice the profession of judging?
2 - Does the present state of legislation permit woman to assume the judgeship?
3 - What are the matters in which a woman judge could serve better than a man?

In the ancient East the judiciary branched off from religion, for religion alone was the source of legislation. Hence the guardian of religion either took charge of judging himself or entrusted it to the chief priest. For this reason, too, woman's share in the judiciary was no better than her share in the performance of religious rites. All these matters were, by custom, no business of women.

After the Islamic conquest the reality did not change much. What changed was in proportion to the difference imposed by the developments of time. The Caliph, as deputy of the Lawgiver in the call to religion, held the first right to assume the judgeship. History establishes that the first caliphs sat in judgment themselves, then instituted judges to whom they delegated the giving of rulings. It is not explicitly known that women were ever entrusted with judicial functions. But it is known that some of them sat to give legal opinions — and the giving of opinions, which is the guidance and instruction of the people in religious law, was not binding; those women who attained it attained it by their learning, and that is something that cannot be bound by any special system.

In the modern East many matters of legislation have been detached from the appurtenances of religion, and the judiciary has become a power standing on its own, separate from the other powers. On this basis it may be said, at least in principle, that the traditional impediments which stood between woman and the judiciary have disappeared. Yet traditions have, regrettably, entered into legislation: what had been a prohibition by custom became an exclusion by legal text, since the law organizing the courts in the East — modern Turkey excepted — reserved the judgeship to men alone. Here it is worth saying that the exclusion of women from the judiciary was not intended in itself, but was a natural consequence of woman's being barred from the enjoyment of her full political rights. It must also be said that the Eastern laws, ancient and modern, had they remained purely Eastern, would have done woman no harm at all. Nor is it difficult to prove that Islamic law — which alone held sway over the lands of the East for long ages — contains nothing in its principles that would bring woman to such a result of constriction. In it woman's rights are complete, and the provisions concerning her are subject, before all others, to the rule that rulings change with the changing of times. But instead of its development being progressive and ascending, the opposite occurred, and the East settled into a standing reaction; the cause of this was the East's looking toward models that did not arise in its own lands. It was as if, through its eager adoption of Western laws — all of which turn woman backward — woman in our lands was wronged.

This may seem strange, but the texts are within reach of every hand; and what the Western woman obtained before the Eastern one, in the enjoyment of political rights, came only after battles she waged in the streets and the forums, by speech, by writing, and by demonstrations, thereby removing from before her the barriers that obstructed her advancement.

The renaissance of the East today rests, in its spirituality, upon the teachings of the East alone — the East being the source of light — while it draws from the West some of its arts and what pertains to the harnessing of matter for the sake of civilization. The East has likewise come to realize that spirit and matter met in it in its past ages, whereupon it illuminated the world and supplied it with the means of spiritual and material civilization; and that in order to regain that ancient glory it must rely on its two halves working together, hand in hand. For this reason it has begun to remove the obstacles that deprived its lands of the work of their women, and has begun to restore to women their rights — a phenomenon that appears plainly in most modern laws.

Yet woman's rights remain incomplete; and once her equality with man is complete, it will become her absolute right to hold every office, among them the assumption of judicial power.

As concerns Lebanon in particular, the latest legislation touching woman's rights is the opening of the ballot before her, to elect and to be elected. But this measure is still incomplete, and it will result, for instance, in there being nothing to prevent a woman deputy from becoming Minister of Justice, while she still could not assume the judgeship; for the organization of the courts still carries in its texts what withholds this right from woman, and it is well known that a special text can be removed only by another special text — and this has not yet happened.

There remains the heart of the matter, namely: is woman fit to assume the judgeship? From the theoretical standpoint the answer is yes! As for the practical standpoint, the matter must be looked at from another side. Let us begin by defining the judgeship: "It is the settling of disputes among people by the rulings received from the existing laws and statutes; it is also the imposing of penalties upon criminals." The first thing this definition implies is the judge's knowledge of the laws and statutes — and there is nothing to show us that woman is unequal to that. It may even be possible that she would have more patience for it than men. But can woman endure the hardships of the profession, the least of whose demands is study that continues a lifetime and effort that wears out body and soul together, and among whose minimal requirements are withdrawal and isolation? That, too, may be within woman's power; but the likelihood is that woman will keep away from it, by force of her own nature and by force of the nature of the work itself. Her case in this will be as it is in the other professions: a woman may become a lawyer, but she keeps away from the criminal court and from the great civil disputes and turns instead to the juvenile courts; she may learn engineering, but she recoils from work in the mines and works in gardens and the countryside; she may excel in the study of medicine, but she will not become a surgeon amputating limbs — the profession leads her rather to the care of children or of mothers, or she works in the far-flung medical field where there is no exhaustion or draining of strength on a wide scale. All this leads to the conclusion that woman has the right to become a judge, but that once she sits in judgment her nature will lead her to the juvenile courts, to consider the problems of childhood and other social matters. In fact it is in this field alone that she has been employed up to now in the countries whose courts include women judges — and even so, the matter is still in the experimental stage.