Chapter 6
TheAdministration of the Judiciary
Noone maytake upoffice as judge unless he has fulfilled all the conditions
necessary for this appointment; once appointed his judgements must be ex-
ecuted. These conditions are sevenin number:
First, he must be a man, thatis, having the twoqualities of puberty and
maleness. Anyone whohas not attained pubertyis not held responsible for
his acts and no judgementis madeagainst him onthe basis ofhis speech: it
is, therefore, all the morefitting that he does not pass judgement onothers in
this state.
Awoman maynot take upoffice as sheis not suited to administra-
tive office even though judgements maybe made on the basis of her state-
ments. Abu Hanifah, however, says that a woman may make judgements
concerning matters about which sheis able to maketestimony, but that she
maynot whenever her testimonyis unacceptable. Ibn Jarir at-T&bari differs
from the consensus in that he permits her to makejudgements in all cases.
Howevera view whichrejects both the consensus andAllah’s words cannot
be considered: “Menare guardians over womenby virtue of His having
given moreto them than the latter” (Qur’an 4: 38), that is,
moreintellect
and powers of discernment. Thusit is not permitted for themto rule men;
Second, thereis a consensus of opinion thatit is not enoughthat his intel-
lect be merely suchthat his basic powers of perception render himresponsi-
ble for his actions, but that heis also competentin his faculty of discrimina-
tion, of sagacious understanding, removed from any lapses ofintellect and
from momentsofinattentiveness, andthat heis able to arrive at an elucida-
tion of any problem byhis perspicacity, and capable ofreaching decisions in
cases of complexity;
Third, he must be a free man, as the deficiency implicit in a slave’s in-
ability to rule his ownaffairs precludes him from being given authority over
others; moreoveras slavehood precludes the acceptance of testimonyit is all
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the morefitting thatit preclude the passing ofjudgementor investment with
authority. The sameapplies to those whohave not attained to completefreedom,
like mudabbars (slaves to be freed ontheir master’s death), mukatabs
(slaves with a written contract to purchase their freedom), and those in par-
tial slavery. Slavery, however, does not preclude him from giving fatwas,
just as it does not preclude him from narrating hadith, as thereis no execu-
tion ofauthority in either ofthese. Ifheis freed, he may makejudgements
–
even thoughthis means heis a freed slave of another – as genealogyis not
taken into consideration injudicial authority.
Fourth, he must bea Muslim becauseit is a condition oflegal testimony,
and because of the words ofAllah, “Allah will never give the kafirun a
way over the Muminun”(Qur’an 4: 140). It is not permitted to appoint a
kafir injudgement over Muslimsorkuffar. AbuHanifah says that he maybe
appointed to judge between people ofhis owndeen. However even though
such appointments are madebythe authorities, they are to establish himas a
leader and head amongsthis people rather than to offices ofarbitration and
the judiciary. Moreoverhisjudgement over themis binding by virtue oftheir
obligation towards him, and not by anyobligatory characteristic ofhis judgement.
The Imamdoes not haveto accept his word regarding his judgement
between them. If they refuse to accept himas their judge, they are not to be
coerced, and the judgement of Islamis then carried out in preference;
Fifth, he must be ofjust character, a quality requisite in all kinds of au-
thority. Justice consists in being true in speech, manifest in his fulfilment of
a trust, free ofall forbidden acts, careful to guard himself against wrong
actions, free ofall doubt, equitable both whencontent and whenangry, chiv-
alrous and vigorous both in his deen and his worldly affairs.
Whensuch
qualities are perfected in him, this quality ofjustice – by whichhis testimony
is permitted andhis judicial authorityis acceptable – maybesaid to bepresent.
If, however, heis lacking in any of these qualities, his testimonyis not ac-
cepted, his words are not accepted and his decisions are not executed;
Sixth, he must be sound of hearing and sight in order that he mayprop-
erly attend to people’s rights andclaims: thus heis capable of discriminating
betweenlitigant and defendant, and ofdifferentiating between the one who
affirms and the one whodenies; he can distinguish truth from falsehood in
the affair, and can recognise the truthful person from theliar. His authorityis
annulled if heis blind, although Malik permits the appointment of such a
person, just as he permits his testimony. If heis deaf, the samedistinctions
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are madeas in the case of Imamate. Asfor soundness of limb, it is not taken
into consideration, even thoughit is in the case of Imamate: he may make
judgements sitting and when he can no longer move, although absence of
any physical defectis preferred in those in authority;
Seventh, he must have knowledge of the laws of the shari’ah and his
knowledge must extend to a comprehension ofits principles and to the ex-
ecution oflegal decisions based onthese principles. Theprinciples from which
the laws of the shari’ah are based are four in number: first, he should have
knowledge of the Book of Allah, may Hebe exalted, in such a wayas to
enable himto attain a proper knowledge of the various kinds of laws con-
tained within the Book, be they ofthe abrogating or abrogated type, clear or
equivocal, general or particular, undetermined or precise; second, he must
have knowledge of the authentic sunnah ofthe Messenger ofAllah, maythe
peace and blessings of Allah be upon him, that is his sayings or deeds, and
the wayin which they have been transmitted – in multiple chains oftrans-
mission or isolated ones, a knowledge of whether such transmissions are
sound or false, and whether they may be applied only to specific circum-
stances or in all cases; third, he must have a knowledgeofthe interpretations
arrived at by the first generations – both regarding what they have agreed
upon and what they differ about – in order that he can follow the consensus
and strive to apply his ownintellectual judgement in cases of difference;
fourth, he must have a knowledge of analogy enabling himto refer matters
about whichthe lawis silent to clearly formulated principles accepted byall,
such that he knows howto deal with newsituations andis able to differenti-
ate the true from the false.
If his knowledge embraces these four principles ofthe laws ofthe shari’ah,
heis entitled to makeijtihad in the deen, he can make fatwas and judgements,
andothers mayseek fatwas and judgements of him. If,
however heis
deficient in these or in someof them, heis not ofthe people ofijtihad and he
maynot makefatwas or judgements. Should he nevertheless be appointedto
the judiciary andrightly or wrongly, he makes judgements, his appointment
is annulled andhisjudgements are rejected, evenif they correspondedto the
truth and werecorrect. Moreover, a wrongaction has been committed both
by the person whosat in judgement and by the person whohanded the re-
sponsibility for arbitration and passing judgement overto him, AbuHanifah,
however, permits the appointment to the judiciary of someone whois not
amongthose ofijtihad as long as he consults others in his arbitration and
judging. The majority of the fuqaha, however, are of the opinion that his
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authority is void andthat his judgements are to be rejected, as he mustimi-
tate the legal judgements (furu’) of others: this is fitting for all those who
merely follow what others have judged to be legally binding, butit is not
fitting for those responsible for deciding whatis binding in the law. The
Messenger ofAllah, maythe peace and blessings of Allah be upon him, put
Mu’adhto the testwhenhe sent himto theYemenas a governor saying: “By
whatwill you judge?” Hereplied: “By. the BookofAllah.” Hethen asked:
“And whatif you do not find the answerin it?” Hereplied: “Then by the
sunnah of the Messenger of Allah.” Hethen asked “And whatif you do not
findit there?” Hereplied: “ThenI will strive to cometo a decision with my
intellect.” Thenthe Messenger of Allah said: “I give praise toAllah that He
has madethe messenger ofthe Messenger ofAllah agree with whatthe Messenger
approves of.”
The appointment of someone whodoes not accept hadith knownas “iso-
lated” hadith is not permitted, as heis abandoning a principle about which
the Companions werein agreement and on which most of the laws of the
shari’ah are based: he would be on a par with those who do not accept the
validity ofthe ijma’; such an appointmentto the judiciaryis not permitted, as
herejects something based ona primarytext.
Asfor those whoreject analogy they are of twokinds: i.
those whoreject
itand follow theliteral meaning ofa text. Theyuse the sayings of those who
have preceded them concerning matters about which thereis notext, reject-
ing ijtihad and avoiding any reflection or deduction. It is not permitted to
appoint such persons to the judiciary because of their restricted access to
legal processes; ii.
those whoreject analogy but makeijtihad in legal matters
by adhering to the most apparent meaning of a text andto whatis implied in
the words, like the Dhahiris. Thefollowers of ash-Shafi’i differ in two ways
as to whetherit is permissible to appoint such persons to the judiciary: some
say thatit is not permissible for the above-mentioned reason, while others
permitit, since they dotake the mostclear and manifest ofthe meaningsinto
account even though they avoid any hidden analogy
Evenif the conditions necessary for appointment to the judiciary which
wehave described above have been met, it is not permitted to appoint someoneuntil
it is known, either by a prior knowledge or by wayof examination
and interrogation, that these qualities are contained in him. The Messenger
of Allah appointed’Ali, mayAllah be pleased with him, overthe judiciary of
the Yemen, but did not subject himto an examination because ofhis previous
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knowledge of him, although he did give him advice, warning him of the
character of the judiciary: “If two contending parlies present themselves be-
fore you, donot give judgementto one of thembefore hearing whatthe other
has to say.”‘ Ali, mayAllah ennoble his face, said: “Afterthis, no matter of
the law wasdifficult formeto resolve.” However, the Prophet, maythe peace
and blessings of Allah be upon him, sent Mu’adhto a part of theYemenand
questioned him beforehand.
* *
It is permitted for someone belonging to the school of ash-Shafi’i, may
Allah have mercy on him, to appoint to the judiciary someone belonging to
the school of Abu Hanifah, as the Qadi must strive to cometo decisions
based onhisownjudgement: it is not necessary that he follow someone from
hisownschool in his assessment ofthe details ofthe case andthe appropriate
judgements. Thusifheis of the school of ash-Shaffi, it is not necessary that
he adhere in his judgements to the sayings of ash-Shafi’i, unless his own
ijtihad leads himthere. Thusif his ijtihad leads himto adopt an opinion of
AbuHanifah, he should act onit and applyit.
Someof the fuqaha, however, have forbidden someone belonging to one
school from making judgements based on another, such that a Shafi’ite is
forbidden from making judgements based on the sayings of Abu Hanifah,
andit is forbidden for a Hanafi to judge according to the madhhab of ash-
Shafi’i, evenif his ijtihad leads himtoit. Thisis because ofthe suspicion of
partiality which might arise regarding his decisions and judgements: if he
judges according to one madhhab and does not go beyondit, there is less
likelihood of any suspicion, andit will be moresatisfactory for the litigants.
Althoughthis practice is required for the smooth management of law, it is
not an obligation imposed by the laws of the shari’ah: indeed the following
of a schoolis forbidden in such cases andijtihad must be used instead.
If a judge comesto a judgement and the same case comes uplatei; he
should again makeijtihad and pronounce a judgementin accordance with
whathis ijtihad leads himto, evenifit conflicts with thejudgement he made
before. *Umar, mayAllah be pleased with him, pronounced in favour of a
sharing of the mustaraka inheritance oneyear, but heleft it
out another year.
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When someonesaid to him: “Whatis this! You judged otherwise last year,”
he replied: “That wasin accordance with what wedecided then, andthis is
what wehave decided now.”
If the person responsible for the appointment, be he Hanafi or Shafi’ite,
stipulates that the person he appoints to the judiciary should only judge by
the madhhabof ash-Shafi’i or of AbuHanifah, there are twopossibilities:
A. If he stipulates this in a general way, in all judgements, then this is an
invalid condition, irrespective of whetherit is in accordance with the madhhab
of the person responsible for the appointment or in conflict withit. As
for the validity ofthe appointment, if this stipulation wasnot formulated as a
separate condition, but rather included in an order or prohibition – whereby
the person responsible says, by wayof a command:”I have appointed youas
the Qadi -judge according to the madhhab of ash-Shafi’i, mayAllah have
mercy on him,” or, by way of a prohibition, “do not judge according to the
madhhabofAbuHanifah,” – then the appointmentis valid and the condition
is invalid, irrespective of whetherit contains an order or a prohibition. It is
permitted for himtojudgein accordance with whathisownijtihad leads him
to, irrespective of whetherit is in accordance withthis condition or not. The
stipulation ofthe person responsible for the appointment rendersit defective
if heis aware that heis stipulating something whichis not permitted, al-
thoughit does not ifheis ignorant ofthis – althoughthis ignorance in effect
annuls the validity ofthe person appointing and the person appointed. Ifit is
stipulated as a condition of the contract of appointment, and he says: “I have
appointed you as judge on condition that you only make judgementsin ac-
cordance with the madhhabof ash-Shafi’i, or the opinion ofAbuHanifah,”
then this appointmentis invalid asits contractis based ona condition which
is null and void. The people of Iraq, however, say that the appointmentis
valid and the conditionis invalid.
B. Whenthe conditionis particular to a specific judgement, it is necessar-
ily either an order or a prohibition:
i. If it is an order, and he says “Exact vengeance(i.e. the death penalty)
for the slave’s murder of a free man, vengeance ona Muslimfor the murder
of a kafir and obtain requital for a killing with other than the sword,” then his
command accompanied by this condition is void. If this condition is stipu-
lated in the contract of appointment, the latter is annulled; if not, the contract
is valid and the person appointed should judgein accordance with the result
of his ijtihad.
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ii. Ifit is a prohibition, it is of twokinds: thefirst, that he forbids himto
judge in the case of a Muslimkilling a kafir, or a free man who murders a
slave, or to judge as to whether or not there is to beretaliation – andthis is
permitted, since the person responsible for the appointmentis limiting his
appointmentrelative to his capacity, andin effect this is outside his field of
examination; the second, that he does not prohibithim from judging as such,
but rather from taking decisions in matters ofrequital. Ourfellowjurists (i.e.
Shafi’ites) differ regarding this prohibition as to whetherit necessarily pre-
vents him from investigating such cases: somesay heis excluded fromjudg-
ing in such matters, being outside his authority, and heis unable to decide
both that requital should be exacted, or thatit be dropped; others, howevei;
say thatit does not necessarily exclude him from such cases, that heis enti-
tled tocommandthat his judgement be carried out, andthat his investigation
is validated as long as the contrary has not been stipulated at his appoint-
ment; in this way, he judgesin such matters in accordance with the results of
his ijtihad.
* *
The appointment of a judgeis contracted in the same wayas appoint-
mentsto other positions ofauthority, namely, either orally by wayofa decla-
ration to someonepresent, or by a message or a written letter to someone
absent; in the case ofa letter, however, it
mustalso be accompanied bycir-
cumstances which confirm (the validity of) the appointment and(the author-
ity of) those appointing him. The expressions by which the contract of ap-
pointmentis concludedare of twokinds: by wayofa manifest declaration, or
by an indication. Amanifest declaration maytake the form of four expres-
sions: “I have appointed you,” “I have given you authority,” “I have made
you mysubstitute,” and, “I have named youasmyrepresentative.” Ifhe uses
one of these four expressions, the appointment to the judiciary or any other
office, is concluded; noadditional wordsare needed, unless as an expression
of corroboration – but they cannot express a condition. Asfor expressions
whichindicate, they are sevenin number, according to someof our compan-
ions: “I rely on you,””I putmyconfidencein you,””1
handitoverto you,””I
have madeit over to you,” “I have delegated you,” “I have recommended
you,” and”I find mysupport in you.” Asthese expressions contain ambigu-
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ity, they are too weakto effect appointments in the same wayas manifest
declarations, that is, unless accompanied in the contract by something else
which removes the ambiguity, thereby transforming its status to that of a
contract based on an opendeclaration like his saying: “Lookto whatI have
entrusted you with,” or,”Makedecisions regarding those matters concerning
whichI have placed myreliance on you,” – thus the appointmentis concluded
by the addition of these wordsto the preceding indicative expression.
Its completionis dependent, however, onthe acceptance ofthe appointed
person: if his appointmentis oral, his acceptanceis given immediately by
verbal expression; ifit is written or byletter, acceptancemaybe delayed, just
asit is permitted to be delayed whenverbal. Thereis a difference of opinion
as to whetherhis beginningto investigate cases constitutes acceptance. Some
permitit, consideringit to be ona par with verbal acceptance, while others
rejectit as long as thereis noverbal expression, saying that his beginning to
investigate only constitutes a detail ofthe contract of appointment, but does
not meanthat the contract of appointment has been concluded.
The completion of an appointment concluded by means ofthe four abovementioned
verbal expressions of investiture is guaranteed by four conditions:
first, the person being appointed must knowthat the person making the ap-
pointmentisempoweredto dothis; ifhe does not knowthis, his appointment
is invalid. If he learns ofthis incapacity after the appointment, the appoint-
mentshould be madeagain and he must not rely on what has happenedbefore;
second, the appointed person must know howthe person carrying out the ap-
pointmentis entitled to assumethis power, must know what qualities permit
himto assumeit, must be aware ofthe fact that he has assumed such a respon-
sibility and that heis entitled to appoint someonein his place – although this
condition only applies to the acceptance ofthe appointed person andthe legiti-
macy of his legal investigations, not to the contract of appointmentitself, in
contrast to the preceding condition. It is not, however, demandedthat this know-
ledge be possessed in person by the interested party, but that it is generally
well-known andthe subject ofdiscussion between people; third, mention should
be made of what the appointmententails, namelyjudicial authority, the gov-
ernance of a country, or the collection ofthe kharaj tax, since these are condi-
tions required in every appointment: the task should be described in detail so
that the purpose ofthis responsibility is clear. If this is not knownthe contract
is null and void; fourth, mention should be made of the area over which au-
thority has been given, so as to knowthe province in which authority maybe
exercised. Anappointment withoutthis knowledgeis not correct.
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If the contractis concluded and the handing over of authority takes place
according to the above-mentionedconditions, it is necessary to comply with
onefurther condition, namely, that he makehis appointment knownto those
affected byhis jurisdiction so that they may showobedienceto him and submit
to his rule; this condition pertains to the necessity oftheir obedience and
is not a condition in the execution of anyorder.
If the appointment andthe obligation of obedienceis concludedcorrectly
in accordance with what we have described, it is correct to regard the ap-
pointed person and the one carrying out the appointment as having engaged
in a contract ofreciprocal responsibility; it is not, however, binding oneither
of them to stay together onthis basis, and the appointed person maywithdraw
from the arrangementifhe wishes andvice-versa, althoughit is better
if each only doesthis with a specific excuse, as the interests of the Muslims
are involved. If amanis dismissed or resigns, this must be made known, just
as any appointment must be made knownso that the execution of a judgementis
not obstructed, anda plaintiffdoes not erroneously seekredress from
someone whois no longer qualified to judge. If a judgementis madeafter
someone no longer holds his post andthis personis aware ofit, then the
judgementis not carried out; if,
however, he does not knowofhis dismissal,
there are two ways of understanding howthe execution of his judgement
maybe made, just as there aretwo ways ofunderstanding the contracts made
by an agent or a deputy
*
Thejurisdiction of a Qadiis necessarily either of a general or a specific
nature. Ifit is ofa general nature and heis free to act in the capacity assigned
to him, then his examinationwill extend to the following ten cases:
First, he decides in disputes and brings to an enddifferences and discord
by making peaceto the mutual satisfaction of bothparties, either by consid-
ering possible solutions to the affair, or by enforcing an irrevocable judgement
based on whatis obligatory in the situation;
Second, he ensures that those delaying their obligations towards others
fulfil themto the benefit of those entitled to them – after having ascertained
that they are due, either by testimony or by evidence; thereis a difference of
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opinion as to whether he maypass judgement onthe basis ofhis ownper-
sonal knowledge of the case. Malik and ash-Shafi’i, mayAllah be pleased
with them, both permitit, thatis, according to the mostcorrect ofash-Shafi’i ‘s
two opinions in this matter, as he has forbiddenit in his other opinion. Abu
Hanifah, mayAllah have mercy on him, permits himto makea judgement
based on knowledge acquired during his jurisdiction but not before;
Third, he has guardianship over thosewhoare forbidden to dispose freely
oftheir wealth by reason oftheir insanity or their being under-age and imposesrestrictions
on those he considers should berestrained because oftheir
foolishness or their bankruptcy, in order to protect their wealth from those
whomight lay claim toit, andto validate the laws ofcontract pertaining to
this wealth;
Fourth, he examines waqf-properties to see that the fundamental capital
is maintained, that any business based onit grows, and that its profit is re-
ceived and duly spent on whatit is meantfor; if there already exists someone
responsible for inspecting the waqf, the position ofthis personis respected,
butif thereis not, then he should take onthis responsibility: he does not have
todeal with the specific details of the waqfifhis appointmentis ofa general
nature; it
maybe, however, that he carries out matters of a general nature
evenif his appointmentis of a specific nature;
Fifth, hesees that wills are executed according to the wishes of the testa-
tor, as long as it is in accordance with the shari’ah andis not prohibited.
Execution ofwills is brought about by allowing possession to take place – in
the case ofbeneficiaries whohave beenidentified by name, and byidentify-
ing beneficiaries by wayofijtihad andfacilitating their taking possession
–
in the case of those whoare simply described bycertain qualities. If thereis
an executor of the will, he should be respected, butif not, he himself should
take responsibility;
Sixth, heis to effect the marriage of single women, whether widowedor
divorced, if they have nolegal guardian and are demandedin marriage. Abu
Hanifah, however, does not considerit a responsibility ofhis jurisdiction, as
he permits such womento makea marriage contract themselves;
Seventh, he applies the hududto those deserving such punishments: ifit
concerns one ofthe rights ofAllah, may Hebeexalted, heis to carry out the
punishment acting onhisown – without any plaintiff- as long as proof has
been established either by confession or bythe testimony ofothers. Ifit con-
cerns one of the rights of people, thenit is subject to the petition of a plain-
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tiff.
AccordingtoAbuHanifah, however, heis not to apply the hadd-punishmentsin
either case unless there is a specific demand;
Eighth, he oversees matters ofpublic benefit within his zone ofjurisdic-
tion by preventing any criminal activities on highways or squares, and by
evicting from buildings and houses anyone whois not entitled to bethere; he
may proceed on his ownin examining such cases, evenif noplaintiff is
present. AbuHanifah says that he maynot examinethe case unless a plaintiff
has recourse to him. These are part of the rights of Allah, however, andit is
of no consequenceifthereis ademandfor intervention ornot: for this reason
it is morefitting that the judge proceeds alone;
Ninth, he carefully examines any witnesses or persons entrusted in the
judicial process; he chooseshis representatives – establishing and relying on
themif they proveto becorrect andupright, and removing them andreplac-
ing themif they demonstrate a deficiency andbetrayal oftrust. Ifsomeoneis
not upto his task, the person whoappointed him should choose the best of
two options: either he should substitute him with someone whois stronger
and moresuitable, or else attach someoneto him who, by keeping him company,
renders him moreefficient and moredecisive;
Tenth, whenjudging between the strong and the weak, he should treat
both equally: he must decide equitably betweenthe lord andthe lorded-ovei;
and not follow his whim by giving short measure to someoneentitled to
something, or by favouring someone who withholds the right of another
Allah, may He be exalted, says: “O Dawud, surely Wehave established
you as a khalifah on the earth, so judge between people with the truth
and do not follow your whimlest it lead you fromthe wayof Allah; those
whoturn from the wayof Allahwill have a painful torment because they
forget the Dayof Reckoning” (Qur’an 38: 25).
‘Umaribn al-Khattab, mayAllah be pleased with him, listed all the con-
ditions of the judiciary and the rules of appointment in his instructions to
Abu Musaal-Ash’ari saying: “The task of the judiciary is an undisputed
obligation and a sunnah to be followed. Seekto comprehend when people
have recourse to you, forit is of no use to speak of a rightifit is not put into
effect. Seethat yourface, yourjustice and yoursitting are the same between
people, such that the lord does not hope for your partiality nor the weak
despair of yourjustice. It
isupto the plaintiff to supply evidence, andit isup
to the defendant to swear onoath. Agreement based on compromiseis per-
mitted between Muslims, except an agreement whichpermits whatis forbid-
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den or forbids whatis permitted. Thereis nothing to prevent you fromre-
turning to the truth ifyou madea judgement yesterday, but which you then
amendafter reflection leads youto change your opinion: the truth is eternal
and reassessment of one’s judgementis better than remaining in falsehood.
Comprehensionis demanded concerning matters which stick in the breast,
but which are not in the Book of Allah or the sunnah of His Prophet: be
aware of comparable andsimilar situations, and only draw analogies in vari-
ous matters by using examples of equal status. Anyone who makesa claim
based on an absent document or proof, accord him a respite: if he brings
proofwithin the allotted time, then his claimis recognised; if not, then judgementis
madeagainst him. Thisis the best wayof eliminating doubt and of
illuminating anyobscurity. The Muslims mayact as honourable witnesses to
eachother, except those whohave been given lashes as a hadd-punishment,
or whoare knownto have given false witness, or whoare suspect with re-
gard to their relationships or family bonds. Surely Allahis protected from
oaths and can repulse anyproofs. Avoidanxiety, trouble or grumbling about
the plaintiff forwhentruth is established whereit should be, Allah will grant
a great rewardto the one responsible and grant hima good remembrance by
it.
Andpeace be on you.”
It
might be noted that these instructions are deficient in two ways: firstly,
the absence of the word “appointment”, by which the handing over of au-
thority is concluded, and secondly, the consideration ofthe apparent probity
ofthe witnesses, rather than the actual probity established after investigation
and examination. Onecan, however, reply that there are two aspects to be
noted regarding the absence of the expression “appointment”: first, that the
word has been used previously, and that these instructions are concerned
only with recommendations and rules to be followed; second, that the ex-
pressions used in these instructions encompassthe meaning of appointment,
like his saying, “Seek to comprehend when people have recourse to you,”
and his saying, “If he brings proof, then his claimis recognised; if not, then
judgementis madeagainst him.” Thusthe obvious import of these instruc-
tions, together with the circumstances in which they were given, render the
use of the actual word “appointment” unnecessary.
Asfor considering the apparent probity of the witnesses, there are two
aspects to the matter: first, thatit perhaps reflects an opinion held by ‘Umar
ibn al-Khattab, whomentionsit to communicatehisownbelief, but not as an
absolute command; second, itmay meanthat after examination andinterro-
gation they are considered persons of probity as long as no cause for re-
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proach manifests – except those whohave been given lashes as a hadd-pun-
ishment.
This type of Qadi, even though he has general jurisdiction, maynot exact
the kharaj tax as its useis dependent upon the judgement ofothers, namely
the commandersof the armies. Asfor the zakahtaxes, if they are the respon-
sibility ofa particular inspector, then theylie outside the realm ofhis author-
ity.
Ifnoinspector has been assigned to this task, somesay thatit then comes
under his general responsibility: he should collect it from those who must
payitanddistributeit to those whohavea claim toit, asitconcerns a right of
Allah, may Hebeexalted, regarding thosewhom Hehas designated by name.
Others, however, say thatit does not comeunderhis jurisdiction, andthatit
is forbidden for himto get involvedinit, as these taxes are to do with finan-
cial rights which are left to the ijtihad of the Imamsto deal with. Thisis the
samejudgement with respect to the imamate ofthe Friday andthe Eidprayers.
If,
however, his jurisdictionis restricted, his competenceis conferred for
a specific matter, andhis power of investigation is contained within certain
limits: like those who makejudgementsin someof the cases wehave mentioned
above, or whojudgein cases of avowal without proof, or in the cases
of debts (but not marriages), or to establish the nisab (the lowest amount on
which zakahis payable). Suchjurisdictions are valid, butit is not correct for
the person thus appointed to go beyondthese limits, asit is a matter ofdel-
egation. Thusitmaybe valid both in a general or a specific way, as in the
case of agency.
#
* *
Itmaybethat the Qadi can investigate in a general waybutis restricted as
to the action he takes. Thus he may havejurisdiction overall cases in one
half of a townor in a particular quarter, in which case he executesall judgements
either in the half or the quarter of the town for which he has been
appointed, and he mayinvestigate both residents and recently-arrived per-
sons – for the latter are treated as residents – unless his jurisdiction has been
restricted to examining cases involving residents and not foreigners or re-
cently arrived persons, in which case his influence does not extend to them.
Ifhe has been appointedfor the whole town, but onthe understanding that he
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give judgementsin just onehalf ofit, or in a particular quarter; or a particular
house, he mayexercise his judgementin every place, asit is not possible to
restrict himto the places assigned to himif his jurisdiction is of a general
kind. If this has beenstipulated as a condition in the contract of appointment,
the latter is annulled and his judgement becomes unacceptable in both the
place assigned to him and elsewhere. If heis appointed to judge between
those who cometo himin his homeor to his mosque, then this is valid: it is
thus not permitted forhimto makejudgementsoutside hishomeorhis mosque,
as this condition restricts his judgementto those whoenter his homeor his
mosque – andthey, and only they, are determined by the fact that they arrive
at his homeor mosque. Abu ‘Abdallah az-Zubayri said: “The amirs here
with us in Basra havefor a long time appointed a Qadiat the Jamr mosque
–
whomthey call the Qadi of the mosque – to makejudgements in cases in-
volving two hundred dirhams or twenty dinars or any lesser amount, andto
fix the standard expenditure (of a husband onhis wife for example) and he
does not go beyondthe place assigned to him, nor beyondthe amounts wherein
his jurisdiction lies.”
*
* #
Iftwoqadis are appointed to the sameregion, three possibilities exist: the
first, is that onepart of the regionis assigned to one of them, and the other
part to the other; this is correct and eachrestricts his jurisdiction to the par-
ticular part assigned to him; the second, is that a particular kind of legal
judgementis assigned to one, and another kind to the other; like the matter of
debts to one, and marriages to the other; this is permitted and eachrestricts
himself to an investigation of the particular judgementin question over the
region as a whole; the third, is that eachis assigned jurisdiction overall cases
throughout the country. Our(ShafTite) scholars differ as toits permissibility.
One group forbidit lest it lead to discord when each party tries to drawthe
other to the judge oftheir choice. Thejurisdiction of eachis annulledif it is
madeat the sametime, while that of the first is valid if the time of appointmentis
different. Another group, however, permitit, and they are in the ma-
jority, arguing that it is a question of delegation, as in the case of agency.
Wheneach party seeks theirownjudge,
it is the plaintiffwhodecides rather
than the defendant. If they are in agreement, one should have recourse to the
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judge nearest the twoclaimants; ifeach party appears to have an equal claim
to a different judge, lots are drawn, according to some, while they are pre-
vented from seeking redress until they agree on one ofthe judges, according
to others.
*
Thejurisdiction ofthe Qadi mayberestricted to a particular case between
twolitigants, in which case he maynot investigate any further cases involv-
ing these two persons and a third party. His jurisdiction over the case between
them remainsin effect as long as the dispute exists between them, and
itcomesto an end whenhe pronounces a final judgement. If another dispute
between themoccurs, heis not empoweredto investigate between them un-
less he has renewed permission.
If heis not appointed to a particular type oflitigation, but rather his appointmentis
restricted to particular days andit is said, for example, “I ap-
point you to investigate adversaries only on Saturday,” his investigation is
permitted regarding the opposing parties – whatever the case in question
–
although his jurisdiction comesto a close at sunset that day. If it is said to
him, “I give youjurisdiction every Saturday,” this is also permitted, as long
as his investigation is restricted to those days only: at the end of (the first)
Saturday, however, his jurisdiction does not cometo an end – byvirtue ofhis
practiceonthe subsequent Saturdays – but rather heis prohibited frominves-
tigating onall other days. If he says – without actually naming someone
–
“Whoeverhasjurisdiction betweenthe litigants onSaturday, heismyrepre-
sentative,” then this is not permitted, asit is not known whothe person in-
vested with authority will be, anditmaywell bethat the person withjurisdic-
tion is not amongthose ofijtihad; ifhesays, “Whoever amongthe people of
ijtihad hasjurisdiction that dayismyrepresentative,” this is also not permit-
ted, because the person involvedis not knownand becausethe designation of
the mujtahidisdependent uponthe opinion ofsomeoneother thanhim, namely
thelitigants; ifhesays, “Whoever amongthe teachers of the Shaffite school,
or from amongthe muftis of the Hanafi school,” it is also not permitted;
likewiseif he namesa numberof persons saying, “Whoeverhasjurisdiction
that day from amongsuch and such a person or such and such a person, then
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heis myrepresentative/’ this is not permitted, irrespective of whether he
names a large or a small number, as the person invested is not known; if,
however, he says, “I hand overjurisdiction to such and such a person andto
such andsuch, andto such andsuch,” this is permitted irrespective of whether
the number namedis small or great, asall of themare appointed: thus ifone
of them hasjurisdiction, he alone occupies the post and the others no longer
havejurisdiction as he has not appointed them to have jurisdiction all to-
gether but rather appointed one of them; if he does appoint them to have
jurisdiction together, this is not valid if their numberis great; as to whetherit
is permittedif they are fewin number, there are two aspects to the matter
–
corresponding to the difference ofopinion amongstthe scholars of our school
regarding the simultaneousjurisdiction of twojudges.
*
* #
Asforsomeone whoseeks appointmentto the judiciary, ifheis not someone
from amongst the people of ijtihad, his seeking is forbidden, and he
becomes disqualified by his seeking; if, however, heis from amongstits
people and has the qualities necessary for the post, his demand maytake
place in the following circumstances:
First, the judiciary is in the hands of someone whois not entitled toit,
either because of a deficiency in his knowledge, or because heis manifestly
unjust. Thus he seeks the post ofjudgein order to get rid of someone whois
not entitled toit, andto placeit in the hands of someone moreentitled toit.
Thisis acceptable, asit implies the removal of somethingevil; but then the
followingis kept in mind: if his intentionis primarily to get rid of someone
whois not entitled to the post his act is rewarded (by Allah), but if it is
primarily so that he can take charge of the post, it is simply permitted;
Second, the judiciary is occupied by someone whois entitled toit and
whois qualified forit, andthe person seeking the post wantsto remove him
fromit either because ofsomeenmity between them, or to obtain the benefit
of the post for himself. Seeking the post in this wayis forbidden, and heis
disqualified fromit byhis seekingit;
Third, there is no one overseeing the judiciary and the postis empty: in
this case the circumstances ofhis claim are investigated – ifit is based onhis
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Al-Ahkamas-Sultaniyyah
need of the stipend of the judiciary to which he would be entitled from the
bait al-mal, then his demandis permitted. Ifit is based onhis desire to estab-
lish truth andhis fear that the post would be taken by someone unworthy ofit,
then his claimis recommended. If,
byhis claim, he wants glory and position,
there is a difference of opinion as to the degree to whichit is disliked – al-
though they agree that it is permitted. One group say that it is disliked, as
seeking glory and position in this worldis disliked; Allah, may Hebe exalted,
says: “Thatlater abode: Wemakeit for those whodo not wish for high
position in the earth norfor corruption; andthe final rewardis for those
who have fear of the Divine” (Qur’an 28: 83). Another group are of the
opinion that his claimis not disliked, as seeking a position whichis permitted
is not disliked. The Prophet of Allah, Yusuf, on whombe peace, desired au-
thority from Fir’awn to be his representative, saying: “Place meover the
treasures of the earth, surelyIama knowledgeable guardian” (Qur’an
12: 55). There are two interpretations ofthis seeking of authority and of his
saying that heis entitled toit with his words, “surelyIama knowledgeable
guardian”: thefirst, thatit means,”Iama guardian of what you have placed
meover, and wise regarding the authority you have invested in me,” andthis
is the opinion of *Abd ar-Rahman ibn Zayd; the second, that it
means heis
“guardian of the accounts and knowledgable regarding languages,” and this
is the opinion of Ishaq ibn Sufyan. These words go beyond the normal terms
used to establish the probity of one’s character and to praise one’s self, be-
cause there wasa specific reason for them: this iswhythere
is a difference of
opinion as to the permissibility of an unjust person conferring the judiciary on
someone. Someare of the opinion thatit is permissible if the appointed per-
son acts justly regarding what he has been charged with – as Yusuf, on whom
be peace, took upthe task on the authority of Fir’awn in order to prevent, by
his ownjustice, the injustice of the latter. Another group, however, are ofthe
opinion thatit is forbidden, andthat exposureto such a positionis to be avoided
because of the implications of receiving responsibility from tyrants and of
helping them, arguing that in effect legitimacy is conferred on them when
their orders are obeyed. They account for the appointment of Yusuf, on whom
be peace, by Fir’awn in two ways: firstly, the Fir’awn of Yusuf wasright-
acting, whereas the Fir’awn of Musa wastyrannical; secondly, he hadjuris-
diction over his goods and wealth, and not overhis lands.
Asfor making apaymentofmoney whenseeking an appointmentas judge,
it is considered – in the same wayas other forbidden actions – as anillegiti-
matebribe and both the donor andthe receiver disqualify themselves thereby
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from the judiciary. Thabit has related from Anasthat the Messenger ofAllah,
maythe peace and blessings of Allah be upon him, cursed the one whogave
a bribe, the one whoreceivedit, and the one whoserved as intermediary
*
* *
Anyone whotakes up a post as a judge must not accept a gift from a
litigant, nor from anyone working with himin the judiciary, evenif heis not
a litigant as he might haveto seek the protection ofthe judge subsequentlyIt
has been related that the Prophet, maythe peace and blessings of Allah be
upon him, said: “Gifts given by amirs are fetters.” If the Qadi accepts them
and immediately gives the equivalent in return, they becomehis; if,
how-
ever, heis not quick to return the equivalent, the bait al-mal has the most
right to themifit is not possible to return themto the donoras the bait al-mal
has priority over him.
The Qadi should not keeplitigants waitingif they have broughttheir dis-
pute to him, except whenthere is a valid excuse. It is also not permitted for
himto shut his door except during times ofrest. Heis not allowed tojudgein
favour of one ofhis parents, nor ofhis children, because of the suspicion of
favouritism involved, although he mayjudge against them, as this suspicion
then no longer exists. Likewise he maynot bear testimony for them, but he
mayagainst them, just as he maybear testimony for his enemy, but not a-
gainst them; he mayjudge in favour ofhis enemy, but not against him: the
reasons for hisjudgementare manifest while those for his testimony are hid-
den, so heis beyondsuspicion regarding the judgement hegives, while heis
exposedto suspicion regarding the testimony.
If the Qadi dies, his deputies are removed fromoffice, but if an Imam
dies, his judges are not removed fromoffice. If the people of a region agree
to appoint a Qadi over themselves where there is no Qadi, this appointment
is invalid if the Imamofthe timeexists; if not, it is valid and he mayexecute
hisjudgements over them. If a new Imamappears after he has taken over the
judiciary, he should not continuein office without the permission ofthe former,
although any previous judgements are not invalidated.
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