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The greatness of Islamic justice
Equality before the Law
Islam's rulings concerning civil rights do not differ from its rulings concerning the aforementioned rights. Islam treats all people equally before the law and grants them equal civil rights without any discrimination between a beggar and a prince, or a nobleman and a man of modest birth.
The Second Rightly Guided Caliph, `Umar ben Al Khattab, who was responsible for organizing the administration of justice in the muslim state upon the firm foundation of the Holy Quran and the Traditions of the Prophet, said in his first speech after becoming Caliph: "O people I swear by God that there is no man among you as powerful as he who is helpless until I restore his rights to him, and there is no man amongst you as helpless as he who is powerful until I restore what he had usurped to its rightful owner".
`Umar ben Al Khattab's message to Abu Mousa Al Ash'ary concerning the administration of justice embodied the greater part of the rulings of the Faith of Islam on justice. He wrote "From the servant of God, `Umar ben Al Khattab, Commander of the Faithful, to the servant of God, Ibn Qays, Peace be upon you.
The administration of justice is a religious duty and a tradition from the Prophet to be observed, so understand thoroughly the cases presented before you and enforce the sentence that you know to be just, for declaring the truth without executing justice is not just. Treat all people who stand before you equally in the way you greet them, address them and judge them. By so doing no nobleman would expect or hope for an unjust sentence in his favour and no poor man would despair of your just ruling''.
Umar ben Al Khattab's last testament to his successor as Caliph was :
"Treat all people equally and do not be influenced by any person who deserves punishment, and take no notice of any person's censure provided you have pronounced a just sentence. Never allow your preference or partiality for any person to influence your judgement in the affairs of the people whom God has entrusted to our authority."
The matter of equality in Islam was not limited to merely declaring principles and establishing laws, but history records that these principles and laws were executed solemnly and conscientiously during the lifetime of the Prophet Muhammad, blessings and peace be upon him, and during the reign of the Four Rightly Guided Caliphs who succeeded him, during the Golden Age of Islam which represents the principles and spirit of Islam in every respect Usama ibn Zayd, one of the most beloved companions of the Prophet Muhammad, prayer and peace be upon him, once attempted to intercede with him on behalf of Fatima daughter of Al Aswad Al Makhzoumiya who had been sentenced to the punish- ment of theft for stealing velvet material and golden ornaments. The Prophet, blessings and peace be upon him, refused Osama's intercession, in spite of his affection for him, and reprimanded him severely saying "How can you intercede with me concerning a penalty ordained by God Almighty Allah." Then he said to the people who had witnessed the matter : "Before the advent of Islam, people of noble descent were not punished if they were guilty of theft and poor indigent people were punished for the same crime. I swear by God Almighty, that if my daughter Fatima were guilty of the crime of theft, I would sentence her to the punishment ordained by God Almighty."
A Jew once lodged a complaint to the Caliph `Omar ben Al Khattab against `Ali Abu Talib. When they both stood before the Caliph `Omar, he addessed the Jew by his name and addressed `Ali Abu Talib by his appellation of Abu Al Hasan (the Father of Hasan) as he was accustomed to addressing him. `Ali showed signs of displeasure and the Caliph `Umar asked him if he had resented his adversary being a Jew with whom he had been obliged to stand on equal footing before the Caliph. `Ali Abu Talib replied that that had not been the cause of his displeasure, the reason being that the Caliph had addressed the Jew by his name whereas he had addressed him by his appellation of Abu Al Hasan, which is a sign of respect and veneration. `All ben Abu Talib had thus expressed his displeasure because `Umar ben Al Khattab had inadvertantly treated him with more respect than his adversary.
A son of `Amr ben Al `Aas, the governor of Egypt, once struck a man of the lower class. The man swore that he would lodge a complaint to the Caliph `Umar ben Al Khattab. `Amr ben Al Aas's son told the man to do so, boasting that the Caliph would never punish him, since he was the son of the noble ruler of Egypt. Later, during the pilgrimage season when the Caliph `Omar, his retinue, `Amr ben `Al `Aas and his son were assembled together, the man whom `Amr's son had struck went to the Caliph, and pointed to the son of `Amr ben Al `Aas and said : "This man struck me unjustly and when I threatened to complain to you, he told me that he was the son of a nobleman and that you would never punish him".
The Caliph `Umar ben Al Khattab looked at `Amr ben Al `Aas and uttered his famous words "What right have you to enslave people, whose mothers gave birth to them as free people?" He then gave the man who had lodged his complaint a whip and told him to strike the son of the nobleman - namely the son of `Amr ben Al `Aas - as he had struck him.
On a certain occasion, the Caliph `Umar witnessed a man and a woman committing adultery, so he assembled the people around him and said : "How should the Caliph of the Muslims act when he witnesses the sin of adultery being committed ?"
`Ali ben Abu Talib replied : "There must be four witnesses to the sin of adultery and if he cannot present these witnesses and he accuses the man and woman of adultery, he must be punished for the sin of slander without sufficient evidence, as any other person would be punished in a similar situation".`Ali ben Abu Talib then recited the following Quranic verse: "And those who launch a charge against chaste women and produce not four witnesses (to support their allegations), - flog them with eighty stripes; and reject their evidence ever after ; for such men are wicked transgressors" [2].
The Caliph `Umar did not reply nor did he reveal the identity of the man and woman whom he had witnessed committing the sin of adultery.
Islam applies the principle of equality in its treatment of Muslims and non-Muslims. Islam ordains that non-Muslims living in a Muslim state or in a state under Muslim rule have the same rights and obligations as their fellow Muslims. They are subject to the Muslim laws of justice except in matters concerning their religion. Accordingly their faith and beliefs are respected by the state and the community in which they live.
Another example of Islamic Justice
Allah created man to be His servant and to implement His way on earth. If humans distance themselves from this message, then they distance themselves from Gods injunctions. That is why Islam has prepared its followers to follow this righteous instinct, it is a joy to our spirit to stand and think of the greatness of Islamic justice, how fair Islamic law is to individuals and groups, rulers and the ruled!
Let us visit one of Islams greatest and brightest symbols of justice, Shurayh Al-Qaadhi (the judge), who narrates: The Caliph `Umar ibn Al-Khattaab bought a horse from a bedouin, paid its price and rode off with it. However, after traveling a little distance, the Caliph noticed some kind of defect in the horse so he returned to the seller, requesting him to take it back since it was defective. The man refused, telling the Caliph that the horse was perfectly healthy when it was sold to him. `Umar told the man to choose a judge and the man suggested Shurayh bin Al-Haarith Al-Kindi whom `Umar accepted.
After the judge listened to the bedouins testimony, he turned to `Umar asking: Was the horse normal and healthy when you bought it? `Umar replied: Yes, it was. Shurayh then said: Then keep what you bought or return it as you took. Umar looked at Shurayh in admiration saying: Thus justice should be -- statement, distinguishing words and fair justice I give you the position of Chief Justice of Koofah in Iraq.
This is Islamic justice, an ordinary bedouin taking the Caliph to court, deciding which judge to go to and the Caliph accepting the judges decision voluntarily. However, this leader was not an ordinary man, but the one about whom the Prophet , said: O Allah! Make Islam victorious by one of the two `Umars (becoming Muslim).
`Umar did not threaten the bedouin or misuse his power, neither did he tell the bedouin that he had exceeded his authority nor that he would get back to him. No, `Umar accepted the judges decision with all modesty.
`Umar admitted that the horse was healthy when he took it and he accepted the judgment, making the case an everlasting example of Islamic justice. The judges fairness made Umar appoint him as a judge of Koofah. He rewarded the judge for his justice and fairness and did not jail him for ruling against him, as some leaders may have done in present so-called democracies.
Another example of Shurayhs justice
Ali bin Abi Talib lost a shield that was dear to him and later found it in the hands of a non-Muslim citizen who was selling it in one of Koofahs markets. When he saw it, Ali said: This is my shield that fell off my camel on so and so night at such and such time. The man answered: No, this is my shield in my hand. Ali replied: No, it is mine since I never sold or gave it to any one.
The man agreed to let a judge decide, which Ali accepted. They went to Shurayh who asked Ali for his side of the story. Ali said that the shield was his and that he had found it with that man, it had fallen off his camel and he had never sold it or given it to anyone. The judge turned to the other man asking his story. The man said that he did not accuse Ali of lying, but the shield was his, as it was in his hands.
Shurayh turned to Ali saying: I believe you, but we need the statement of two witnesses to back your story. Ali said that there was his aide Qanbar and his son Al-Hassan to which the man replied that a son could not testify for the benefit of his father. Ali said: O God, a man who is promised paradise cannot act as a witness! Have you not heard what the Prophet , said that Al-Hassan and Al-Hussayn were the masters of the youths of paradise? Shurayh said: Yes I have, but a son cannot bear witness for his father.
Then Ali turned to the man and said: Take the shield, as I have no other witnesses.
The man, who was a non-Muslim, then said: O Ali, the shield is yours. What a great religion! I can sue Ali and get a judge to pass a decision for my benefit! I declare myself a Muslim. He told the judge that he was following the army and had seen the shield fall down and picked it up. Ali then told him to keep the shield and gave him a horse, besides. Soon after, the man was seen under Alis leadership fighting Al-Kharajites (dissenters). Are these two examples not sufficient for us to follow those great men?
Man is a social being by nature. He cannot live perpetually on his own, completely independent of others. People are interdependent. Consequently, friction arise between them when their personal interests come into conflict with each other, or when what they perceive as their individual rights infringe upon those of others. Conflicts between them inevitably break out. In some cases, one party to the conflict might be strong and aggressive while the other is weak and condescending, incapable of defending his rights.
Because of this, it becomes necessary for there to be a way to prevent people from oppressing one another, to ensure that the weaker members of society receive justice, and to determine right from wrong when issues get complicated or uncertain. This can only be realized through a judge that has the power to give legal verdicts in cases of dispute.
For this reason, we find that the existence of a judge is considered by Islamic law and the laws of all the other revealed religions to be both a religious obligation and a necessity of human life. Allah says:
We have sent Messengers with clear proofs, and sent down with them the Scripture and the Balance that mankind can establish justice.
Islam the religion that Allah wants for mankind from the time that He sent Muhammad (may he peace and blessings of Allah be upon him) until the Day of Judgment shows great concern for the judicial system and those appointed to carry out its responsibilities. Islam prescribes for it many legal injunctions. How else could it be, when Islam is the religion of mercy, equality, and justice? It is the religion that comes to free people from worshipping Creation and bring them to the worship of Allah. It is the religion that comes to remove people from oppression and iniquity and bring them to the highest degree of justice and freedom.
Allahs Messenger (peace be upon him) was the greatest of judges. He used to act in the capacity of judge in the city of Madinah, which was the first Islamic state. He used to appoint people to be judges in other cities. Among these were `Utb b. Asyad who was sent to Mecca, `Al b. Ab Tlib and Mu`dh b. Jabal, both of whom were sent to Yemen.
In the era of the Rightly Guided Caliphs, the head of state continued to be the one to appoint judges, govern their affairs, protect their independence, and keep the governors and political appointees and even the Caliphs subject to the judges verdicts. `Umar b. al-Khattb, the second Caliph, was the first person to make the judge an independent entity, distinct from the Caliph and the governors.
In this way, the judicial system continued to evolve throughout the early Islamic era, during the Umayyad era, and well into the Abbasid era. The office of Chief Justice came into being at this time. The Chief Justice became responsible for appointing and removing judges. He was responsible for supervising their behavior and monitoring their performance. The first person to be appointed to this post was the justice Ab Ysuf, the student of the great jurist Ab Hanfah (may Allah have mercy on them both). Thereafter, this office became widespread throughout the Muslim lands. It continued to exist up to the fall of the Ottoman Empire.
The names of many just judges have been preserved in Islamic History. Their names have become like synonyms for justice and integrity. Many pages in the history books are devoted to the lives and careers of eminent judges like Iys b. Mu`wiyah, Shurayh b. `Abd Allah, al-`Izz b. `Abd al-Salm and others who applied the teachings of Islam in the best possible manner. They give us a living example of how a Muslim judge is supposed to conduct himself.
We should mention, since we are discussing the Islamic judicial system, that Islam sets down broad guidelines and basic principles concerning the affairs of life and rarely concerns itself with the particular details of life. This is so these guidelines can stay relevant for every time and place. One of these guidelines is that establishing justice among people is an obligation that has to be carried out. As for the manner of achieving this objective, this has not been detailed by the sacred texts. This has been left for the people of each generation to deal with in a way most suited to their unique set of circumstances. The only condition is that whatever methods are chosen must not run contrary to Islamic Law.
In the pages that follow, we shall present the most important elements of the Islamic judicial system.
Defining the Judicial System and its Legal basis
The judicial system in Islam is a system for deciding between people in litigation with the aim of settling their disputes in accordance with the injunctions of the Divine Law, injunctions that are taken from the Quran and Sunnah.
All of the Messengers of Allah (may the peace and blessings of Allah be upon them) acted as judges. Allah says:
And remember David and Solomon, when they gave judgment concerning the field when peoples sheep had browsed therein at night, and We were witness to their judgment. And We made Solomon to understand the case. And to each of them We gave good judgment and knowledge.
Allah also says:
O David, verily we have placed you as a vicegerent on Earth, so judge between people in truth, and do not follow your desires for it will mislead you from the path of Allah. Verily, those who stray from the path of Allah have a severe punishment because they forgot the day of reckoning.
Prophet Muhammad (peace be upon him), who came with the final and eternal Message, was ordered by Allah to pass judgment in disputes just as he was ordered to spread the word of Allah and call people to Islam. This is mentioned in the Quran in a number of places. Allah says, for instance:
- So judge (O Muhammad) between them by what Allah has revealed and do not follow their vain desires, but beware of them lest they turn you away from some of what Allah has sent down to you.
- And if you judge (O Muhammad), judge between them with justice. Verily, Allah loves those who act justly.
-But no, by your Lord, they shall have no faith until they make you (O Muhammad) judge in all their disputes and find in themselves no resistance against your decisions and accept them with full submission.
The Sunnah also provides for the legal basis of the Islamic judicial system. It is related by `Amr b. al-`As (may Allah be pleased with him) that the Prophet (peace be upon him) said: If a judge gives a judgment using his best judgment and is correct, then he receives a double reward (from Allah). If he uses his best judgment but makes a mistake, then he receives a single reward.
Allahs Messenger (peace be upon him) said: You should not wish to be like other people, except in two cases: a man who Allah has given wealth and he spends it on Truth and another who Allah has granted wisdom and he gives verdicts on its basis and teaches others.
Many scholars have related to us that there is consensus among Muslims on the legal status of the judicial system in Islam. Ibn Qudmah says: The Muslims are unanimously agreed that a judicial system must be established for the people.
A judicial system is a necessity for the prosperity and development of nations. It is needed to secure human happiness, protect the rights of the oppressed, and restrain the oppressor. It is the way to resolve disputes and ensure human rights. It facilitates enjoining what is right, forbidding what is wrong, and curbing immoral behavior. In this way, a just social order can be enjoyed by all sectors of society, and every individual can feel secure in his life, property, honor, and liberty. In this environment, nations can progress, civilization can be achieved, and people are free to pursue what will better them both spiritually and materially.
Oppression is an unfortunate human characteristic. If people were completely just, judges would never work and would have no purpose.
The Islamic Ruling Concerning the Judiciary
The jurists agree that the duties of the judge are an obligation that must be carried out by society. If some members of society carry out this duty, it is sufficient for everyone. If, on the other hand, everyone neglects it, then everyone in society is sinful.
The proof that these duties are obligatory comes from the Quran:
O you who believe! Stand out firmly for justice.
It is only necessary for a small number of individuals to perform judicial duties since judicial concerns come under the broad duty of enjoining what is right and forbidding what is wrong. It is not obligatory for every individual to carry out this duty as long as some people are doing so.
The affairs of the people will not be correct and upright without a judicial system. It is, consequently, obligatory for one to exist, just like it is necessary to have a military. Ahmad said: People have to have a judicial authority or their rights will disappear.
The duties of the judiciary include enjoining what is right, helping the oppressed, securing peoples rights, and keeping oppressive behavior in check. None of these duties can be performed without the appointment of a judiciary.
Consequently, their appointment is obligatory on the basis of the following juristic principle: Whatever is needed for a legal obligation to be carried out is also obligatory.
This is the general ruling regarding the judiciary. On the individual level, the ruling may differ, depending on the individuals circumstances. It is obligatory for a person who is capable of performing these duties to do so when there is no one else available who is qualified. It is disliked for a qualified person to take the post, if someone else is available who is more qualified to do so. It is forbidden for a person to take the post if he realizes he is not capable of doing so or because he knows that he is easily tempted to be unjust. If a person is one of a number of equally qualified candidates, then it is permissible for him to assume the post of judge or to decline it.
The great jurist, Mlik, was asked: Can a man be forced to accept the post of judge?
He answered: Yes, if there is no one else to fill the post.
He was then asked: Even if this means beating him or imprisoning him?
Mlik replied: Yes.
The Qualifications of a Judge
The jurists have given us a number of qualifications that a judge should meet so that he will be able to properly perform his duties. They are:
1. Maturity: A minor cannot be appointed as a judge. If he is appointed, then his decisions will not be binding. Allahs messenger (peace be upon him) ordered us to seek refuge from the rule of children. Ahmad relates that Allahs Messenger (peace be upon him) said: Seek refuge with Allah from the rule of children and the leadership of children. Refuge is only taken from harmful things. Thus, appointing children to official posts is a harmful practice. Also, a minor does not have custody over himself, so how can he be granted authority over others by being appointed to the post of judge or, for that matter, any other official post?
A judge needs not only to have a sound mind and body, he needs to be deeply insightful and have opinions of high quality. It is not necessary for a judge to be advanced in years. He must fulfill all the other necessary qualifications and be at least past the age of puberty, even if he is very young. It is related that the Caliph al-Mamn appointed Yahy b. Aktham as the judge of Basra when he was eighteen years old. Some people criticized his appointment, so al-Mamn wrote to Yahy asking him how old a judge should be. Yahy wrote back, saying: I am as old as `Itb b. Usaid was when Allahs Messenger (peace be upon him) appointed him as judge over Mecca.
At the same time, being older is desirable, because it increases the dignity and prestige of the judge. The jurists consider these traits desirable for a judge.
2. Sanity: It is not permissible for an insane or mentally challenged individual to hold the position of judge. Likewise, a person whose judgment is impaired on account of old age or sickness should not act as a judge. This qualification is comparable to that of maturity. In fact, it is even more serious than age. If such a person is appointed as judge, then his decisions will not be binding. The jurist al-Mward writes:
This condition is unanimously agreed upon. To meet this qualification, a persons mind must be sound enough for the person to be legally accountable for his actions. He must be intelligent and able to perceive what is necessary to be able to discriminate between things. He must not be absent-minded and neglectful. He must be intelligent enough to see difficult situations clearly and solve difficult problems.
3. Freedom: A judge must enjoy complete freedom. He should not be a slave at all, not even a slave in the process of buying his freedom or a runaway slave. If such a person is appointed to a judicial post, his decisions will not be binding.
The reason for this is that a slave does not have complete custody over himself, so he should not be put in a position of authority over the affairs of others. A slave is liable to work for the interests of his master. Moreover, the judicial post is a position of honor and prestige that must be able to deter hardened criminals and deviants. This will not happen if the judge is a slave. This, at least, is the view of the majority of jurists. The jurist Ibn Hazm sees that the appointment of a slave is acceptable. His argument is that a slaves testimony is acceptable, and the qualifications for a judge, in his opinion, are the same as the conditions for accepting a persons testimony.
4. Islam: A judicial post is a post of binding, legal authority. An unbeliever should not be given such authority over a Muslim. Allah says:
Allah will never grant the disbelievers a way over the believers.
Moreover, a judge must apply the injunctions of Islamic Law, and this is, in itself, a religious act.
Carrying out a religious act requires faith on the part of the one performing it. It also requires fear of Allah to ensure that no deviation takes place in carrying out its injunctions. This is not possible for a Non-Muslim, because he does not believe in Islam in the first place. His disbelief is likely to cause him to purposefully violate Islamic injunctions or disregard them completely.
There is no disagreement among the jurists about this condition with regard to a judge appointed to pass judgment over Muslims. As for a judge appointed to deal exclusively with cases concerning Non-Muslims, most jurists insist that he still be Muslim, because they consider Islam to be a necessary qualification at all times. The jurists of the Hanaf school of law permit the appointment of a Non-Muslim judge to decide cases between Non-Muslims living in an Islamic state. They argue that competency to act as a judge is similar to the competency to give testimony. A Non-Muslim living in an Islamic state is competent to give testimony for or against other Non-Muslims; thus, he is competent to sit in judgment of them.
The fact that he is a judge exclusively for Non-Muslims in no way diminishes his authority or status, just like the appointment of a Muslim judge to deal with a certain group of Muslims does not take away from his authority.
The jurist al-Mward sees the appointment of Non-Muslim judges for Non-Muslims to really be an executive appointment in the guise of a judicial one. He argues that the Non-Muslims have the option to take their disputes to the Muslim courts. In this case, the Muslim courts will decide whether or not they want to intervene. Allah says:
So if they come to you (O Muhammad), either judge between them or turn away from them.
If, on the other hand, they take their dispute to their own courts, then and only then, must they adhere to their courts decision. This is because of a deliberate choice on their part. Before making such a choice, they were not compelled to accept the decision of their own courts.
5. Male gender: This is considered by a great number of scholars to be a necessary qualification. They consider it impermissible for a woman to be appointed as a judge. If she is appointed, the one who appointed her is a sinner and her appointment is void. Her decisions are not binding, even on issues where her testimony would be accepted. Their proof is the statement of the Prophet (peace be upon him): A people will never be successful if they put a woman in charge of their affairs.
A woman is not allowed to be appointed as the highest political authority, that of leading the state. Nor can she be a provincial governor. For this reason, it has never been related that the Prophet (peace be upon him) or any of his successors among the Rightly Guided Caliphs ever appointed a woman as a judge or a provincial governor. If it were permissible, it would have occurred at least once in at least one province.
Another argument advanced to support this view is that a judge must mix freely in the company of men, including jurists, witnesses, and disputants, whereas a woman is generally not permitted to mix with men unnecessarily, because of the harm that might come to her on account of it.
The jurists of the Hanaf school of law permit a woman to act as judge, but do not permit her to preside over cases involving capital crimes that require prescribed legal punishments or retribution. The reason for this is that her testimony is not acceptable in such cases.
The jurist Ibn Jarr al-Tabar does not consider being male a qualification at all. In his opinion, a judge who passes a verdict in a case is no different than a jurist who gives a decision on a matter of law. Since a woman can perform the latter function, she can therefore be a judge in any capacity. This opinion is also held by the jurists of the Zhir school of law.
6. Upright character: Most jurists recognize this qualification as a condition for every position of binding, legal authority. This means that a judge must perform all the obligatory religious duties, be honest, have apparent integrity, be free from sinful and licentious behavior, keep away from dubious activities, conform to social norms, and be a model of good behavior in his religious and worldly affairs. It is not permissible to appoint an immoral person to a judicial post, because being a judge is one of the greatest trusts that a person can be given.
7. The capacity for independent juristic reasoning: A judge should be capable of deriving the Law from its sources. He must have sufficient knowledge of the Quran and Sunnah to know where to find both general and specific legislations. He must know where to find the texts that clarify ambiguous ones. He must be able to differentiate between abrogated rulings and the texts that abrogate them. He must know which parts of the Sunnah have unquestioned validity and be able to differentiate between complete and incomplete chains of narration and the quality of the narrators. He must be knowledgeable in the Arabic language and its grammar. He must have knowledge of the points of consensus and disagreement in matters of Islamic Law from the time of the Prophets Companions onwards. He must be capable of juristic analogy.
8. Full sensory perception: What is required is the ability to see, hear, and speak. According to most scholars, this qualification is a necessary condition for being appointed as a judge. A deaf person may not be appointed as a judge, because he is not able to hear others when they speak. A blind person may not be appointed, because he cannot distinguish the plaintiff from the defendant by sight, nor the one admitting anothers right, nor the witness from the one being witnessed for or against. A person who cannot speak may not be appointed, because he cannot pronounce judgment and his sign language will not be understandable to the majority of people.
As for the soundness of the rest of his body, it is preferred but not required. The reason it is preferred is that it increases the prestige of the one who holds the post. This prestige, in and of itself, is preferred but not required. Thus, a judge may be crippled, an amputee, or blind in one eye. The same may be said for someone who has difficulty speaking, weak hearing, or limited sight, as long as the needed abilities are present.
It is proper to mention that a judge can only acquire his position through political appointment from the highest political authority or his appointed representatives. This helps to preserve Muslim unity and prevent civil strife. A judicial post is, without doubt, a political post; thus, it is not permissible for anyone but the supreme political authority to appoint someone to this position except in the most severe extenuating circumstances. For instance, if there is no political authority in a certain area, it becomes up to the people of knowledge who live there to appoint a judge to deal with their disputes. If a political leader comes into existence in the area later on, his permission will be necessary for the judge to retain his post.
Likewise, a judicial post can have a general jurisdiction or a specific one. It is possible for a judge to have jurisdiction over all the Muslim territories and over all types of cases. It is also permissible for the political authority to appoint a judge to a particular locality or limit his jurisdiction to a certain type of case, like judging between Non-Muslims. In either situation, the judge will not be allowed to preside over cases outside of his jurisdiction or outside of his specialty. The limits of his jurisdiction can be based on time, locality, or type of case.
Court Officials
A judge needs a number of other people to assist him in carrying out his duties. Among these officials are the following:
1. Advisory council: A judge must select for himself a number of scholars and other eminent people whose advice he can seek when deliberating on cases. He should be able to consult them on matters of Islamic Law, benefiting from them what injunction may be appropriate to apply in this case or that. This consultation is recommended, even if the judge is a scholar himself. `Umar b. al-Khattb used to consult with the leading and most scholarly Companions like `Al b. Ab Tlib and `Abd Allah b. Abbs (may Allah be pleased with them all).
The purpose of consultation is to ensure that the judge is aware of all the pertinent information that pertains to the case or that could affect his decision, information that he might otherwise have overlooked or forgotten. He also gets the benefit of hearing the verdicts that they suggest. The members of the advisory council should be capable of independent juristic reasoning and should all be of good character. This is so they will be able to assist the judge in determining the verdict in accordance with Islamic Law.
2. Court clerk: He is the one who sits before the judge and records everything that the judge dictates to him. The jurists recommend that the court clerk be of good character and have sufficient knowledge of Islamic Law.
3. Bailiff: He is the one who brings the litigants before the judge for him to decide their cases. His job is to assure that their cases are attended to in the proper order. This may be on a first-come first-serve basis, or on a predetermined system where certain types of cases take precedence.
4. Court usher: Among his responsibilities is that of informing the public of the times that the court is in session and the times when the judge takes his recesses. He has the responsibility of informing the judge of those who wish to have an audience with him, so that the judge can decide whether or not to receive them.
5. Translator: The judge may appoint one translator or more of good character. If a translator is needed for a certain language and none is employed by the courts, then a reliable and trustworthy translator may be brought in from outside. Two translators are preferable than one. A woman of good character can act as translator if necessary. Their job is to translate the statements of the plaintiff, the defendant and the witnesses for the judge if the judge does not understand their language.
6. Officer of the court: He is the one who stands at the head of the judge and orders the litigants to rise when it is time for them to leave the courtroom. He is a police officer who works to protect the judge and ensure the safety of the courthouse.
7. Court witnesses: These people can be summoned to the courtroom to witness the testimony of the litigants, memorize it, and present it to the courts when necessary. They should be of good character, sufficient to qualify them to act as witnesses.
8. Warrant officers: Their job is to bring the litigants into the courtroom if others have a claim over them. They should be religious and trustworthy.
9. Court investigators: These are people of good character chosen by the judge whose identities are not disclosed to the public. Their job is to vouch for the character of witnesses who they are asked about.
10. Disciplinary officers: These are a group of men of decent standing who are present in the courtroom to restrain people, litigants or otherwise, if they exhibit unruly behavior in the courtroom. They have the right to remove unruly people from the courtroom if they persist in their misconduct. These officers are also part of the police force.
11. Expert witnesses: These are people of good character chosen by the judge who have expertise in various fields that are needed by the court. This would include appraisers of value, land surveyors, and others.
12. Jailor: Among his duties is to report to the judge on a daily basis what goes on in the prisons.
This is order to ensure that no one is wronged and that no one remains imprisoned longer than he should.
It should also be mentioned that some of these officials are selected by the judge himself, like the members of the advisory council, the court investigators, and the court witnesses. Others are appointed by the state, like the court clerk, bailiff, and court usher. The court officials receive their pay from the state treasury according to the duties that they perform and their level of expertise. The judge should monitor the activities of his officials to assure that they conduct themselves properly and fulfill their duties.
The Independence of the Judiciary
Islamic Law, through the sacred texts and through its basic principles, prohibits the governing officials from interfering with or influencing the decisions of the court in any way. Islamic Law, in its general principles and individual statutes, seeks to realize its primary objective of establishing justice on the foundation of monotheism. Monotheism is not just lip service. It is realized through actions that verify the profession of faith. These actions must entail carrying out the commandments of Allah and preventing what Allah has prohibited. This is a collective responsibility of Muslim society. This requires that Allahs commands and prohibitions be applied as the standards of truth and justice. Whatever Allah has commanded is truth and justice and whatever He has forbidden is falsehood and oppression. Consequently, prohibiting what Allah has forbidden is truth and justice.
There are numerous verses in the Quran that command justice and forbid oppression. Allah says:
- Verily, Allah enjoins justice, doing good, and spending on ones relatives, and forbids licentious deeds, wrongdoing, and transgression. He admonishes you, so perhaps you might take heed.
- And let not the hatred of others dissuade you from justice. Be just, that is nearer to piety; and fear Allah. Verily, Allah is well acquainted with what you do.
- And if you judge (O Muhammad), judge between them with justice. Verily, Allah loves those who act justly.
- And whoever does not judge by what Allah has revealed, they are the disbelievers.
In the hadth, Allahs Messenger relates: Allah says: O My servants, I have prohibited oppression upon myself and made it prohibited between you, so do not oppress one another.
These are but a few of the sacred texts that show the obligatory nature of judging with justice and with what Allah has revealed. This is a general command, equally applicable to the one who governs and the one who is governed. The political power in Islam is bound by Allahs Law. There is no obedience due to the government if it requires disobedience to Allahs Law. This is the way our pious predecessors acted upon Islamic Law. The political leaders are merely appointed to the affairs of state. The true ruler is Allah. The Caliph or leader is but one of the Muslims, equal with the others. The Muslims are the ones who select him and place him in authority. They can monitor his activities. He must consult with them. If he violates Islamic Law and acts against the welfare of the people, they can have him removed from office.
In the past, the political leaders of the Muslim state understood that justice by which the heavens and the Earth are kept right is the basis for governing in Islam.
`Amr b. al-`As said: There is no political leadership without men. There are no men available without wealth. There can be no wealth without a prosperous civilization. Civilization cannot prosper without justice.
The Caliph `Umar b. `Abd al-`Azz wrote to one of his functionaries who sought permission to fortify his city: Its fortification is achieved through justice and through removing oppression from its streets.
Sa`d b. Suwayd said in one of his addresses in the city of Homs: O people, Islam has an impenetrable wall with a secure gate. Its wall is the truth and its gate is justice. Islam will remain inviolable as long as the political authority is stern. This sternness is not by whip or sword, but by judging with truth and applying justice.
For this reason the Rightly Guided Caliphs and the leaders of the Islamic state worked hard to bestow every possible dignity and honor on the judiciary and strove to protect it from all outside interference. They did this to ensure truth and justice. Therefore, they did not attempt to turn the court rulings to their favor or the favor of those they liked.
They, themselves, adhered to the decisions of the judiciary, respected them, and carried them out. They accepted the verdicts of the judge. Even when the rulings were against their own selves, they would dutifully carry them out. The history books are full of narrations where the Rightly Guided Caliphs and later Muslim governors were involved in litigation with others and the judges who they themselves appointed ruled against them. In some cases, the Caliph knew what the truthful outcome should be, but still allowed the case to go to court in order to set an example of conduct for those who would come after them. They would also do this to test the strength of the appointed judges in the face of such a situation where their adversary might even be a Jew or other Non-Muslim.
The judges, themselves, were no less concerned about these things than the governors were. The judge in his courtroom was an imposing and well-respected figure. He would not sway from the truth on account of criticism. He would treat the prince and the pauper equally. The history books give us some examples of this.
Al-Ash`ath b. Qays entered upon the judge Shurayh while he was in his courtroom. Shurayh greeted him and bade him sit next to him. At this time, a person came in with a case against al-Ash`ath. Shurayh then said: Stand up and take the defendants seat and address the other.
Al-Ash`ath said: On the contrary, I will speak to him from here.
Shurayh then said: Will you stand on your own, or must I bring someone in who will make you stand? At this point, he stood up and took his place as ordered.
Ab Ysuf one of historys most extraordinary judges - has a case brought before him where a man claimed that he owned a garden that was in the possession of the Caliph. Ab Ysuf had the Caliph appear in court and then demanded that the plaintiff bring his proof. The plaintiff said: The caliph misappropriated it from me, but I have no proof, so let the Caliph take a solemn oath.
The Caliph then said: The garden is mine. Al-Mahd purchased it for me but I find no contract for it.
Ab Ysuf bade the Caliph thrice to testify under oath, but the Caliph would not do so. At this point, Ab Ysuf ruled in favor of the plaintiff.
The Caliph, Ab Ja`far al-Mansr, once wrote to Siwr b. `Abd Allah, the presiding judge in Basra: Look at the land that so-and-so the general and so-and-so the merchant are disputing about and give the land to the general.
Siwr wrote back: The proof has been established before me that the land belongs to the merchant. I will not take it from him without proof.
Ab Mansr wrote back: By Allah, besides Whom there is no other god, you will not take it from the merchant without right. When the judges letter had reached him, he had said: I have filled it, by Allah, with justice, and my judges have begun to refuse me with the truth.
Islam did not stop at prohibiting the political leadership from interfering with the decisions of the judge. It went further, providing other guarantees to ensure that the judiciary would remain strong and independent.
Since the judge holds such a prominent and serious position in society being that he is the one who decides between others in their disputes it is necessary for him to enjoy the respect and trust of the people so that they will be content in accepting his judgments as just. A judge will not be able to attain this public esteem except with some concrete proof of his character.
He provides this proof through his good conduct that must be free of eccentricities and through his unyielding adherence to justice when passing judgment. The jurists stress this point and discuss the types of behavior and work that a judge should stay away from. Without doubt, the things that they mention are not exhaustive, but are merely given by way of example.
A Judges Behavior and Conduct
The general rule of thumb for a judges behavior and conduct is that it should be acceptable to the public and not open up opportunities for people to doubt his integrity and impartiality.
The following are among the things mentioned by the jurists:
1. He is not allowed to engage in business: The great jurist al-Shfi` said: It is disliked for him (i.e. the judge) to engage in buying and selling, because it is feared that he will receive unfair advantages or excess. The problem is that if he engages in commerce, it cannot be assured that he will not receive favors and preferential treatment from some people that might, in turn, cause him to give preferential treatment to them in the courtroom. All other forms of commercial dealings should be considered in the same light as buying and selling.
2. He is not permitted to accept gifts: A judge should never accept a gift from one of the litigants, because this puts him under suspicion of partiality. In truth, it is disliked for a judge to accept a gift from anyone, whether he be a litigant or not.
When `Umar b. `Abd al-`Azz refused a gift, it was said to him: The Prophet (peace be upon him) used to accept gifts. At this, `Umar said: These things were gifts for the Prophet (peace be upon him), but they are bribes for us, because the Muslims used to seek nearness to the Prophet (peace be upon him) with gifts on account of his prophethood.
Another difference is that the Prophet (peace be upon him) was divinely protected from error, so what is feared from others who receive gifts was not feared from him.
All forms of benefit that a judge may receive from another person under his jurisdiction should be treated in the same way as gifts.
3. He should not engage in any socially unacceptable behavior: Added to what has been mentioned already, a judge is supposed to be dignified, venerable, and distant from anything that might injure his reputation or be unseemly for a judge to get involved in. He should not socialize excessively with others. This protects him from being affected by them, which could compromise his impartiality. Likewise, he should not stay away from public gatherings where his attendance is appropriate.
He should avoid jesting and making other people laugh, whether he is in their company or they in his. All of this can detract from the dignity and venerable status that a person needs to have as a judge.
Likewise, when he speaks, he should maintain the highest standard of speech possible, free from errors and defects. It should also be free from the ridicule of others and haughtiness.
In order to maintain the appearance of judicial independence, it is not permitted in Islamic Law, according to the majority of jurists, for the political authority to remove a just judge from office unless the public welfare requires it. A valid reason might be to appease a large sector of the population or to appoint another person who is much more qualified for the post. If a judge is removed without a valid reason, then his appointment remains intact.
Material factors have a great influence over the lives of people. Islamic Law takes this into consideration when dealing with the issue of preserving the independence of the judiciary.
A judge must be totally preoccupied with the duties of his office. He is prohibited from earning an income through commerce, and furthermore has to maintain the highest standards of decorum and decency in his frequent dealings with other people. These things are all necessary in order for him to earn the respect of others and maintain his judicial independence. These being his circumstances, he must receive a salary from the public treasury commensurate with his standard of living so he will not be forced to earn an income in a manner that is inappropriate for a person of his standing.
The jurists have stated that a judge should receive a salary from the public treasury. Ibn Qudmah, in his discussion on the income of a judge, mentions the different views of the jurists then writes:
The correct view is that it is permissible for a judge to take a salary for his services in any situation, because Ab Bakr (may Allah be pleased with him) was given a salary of two silver pieces a day when he became Caliph. We have already mentioned that `Umar (may Allah be pleased with him) gave salaries to Zayd, Shurayh, and Ibn Mas`d. If salaries are not provided, the judicial system would be overturned and there would be no way to preserve the rights of the public.
Termination of the Judges Term of Office
There are a number of ways that a judge can be removed from his post. The most important of these are as follows:
1. Removal of the judge by the political authority or a representative thereof: This is allowed for the political authority in certain cases. A judge can be removed if the political authority finds:
1. another person who is more qualified for the post.
2. that the judge in office is incompetent.
3. that the judge admits to purposeful injustice.
4. clear evidence demonstrating the willful injustice of the judge.
`Umar b. al-Khattb (may Allah be pleased with him) removed Sharhabl b. Hasanah from his judicial post. Sharhabl asked him: Did you remove me from my post because you are displeased with me? `Umar replied: No, but I found another who is as decent as you are, but better in performing his duties. Sharhabl then said: O Commander of the Faithful, being removed from ones post by you is a shameful thing, so tell the public the reason why you did so. `Umar then did as Sharhabl requested.
2. Bad character: If a judge commits certain sinful deeds that remove from him the legal requirements of good character drinking, for instance, or any other major sin then his appointment is automatically terminated. Ibn Qudmah writes:
If the judges circumstances are changed through immoral behavior, loss of sanity, debilitating illness, or loss of one of the necessary qualifications for being a judge, he must be removed from office because of that, and the political authority has no alternative but to remove him.
3. Apostasy: Islam is a necessary condition for a judge to be appointed and for him to remain in office. For this reason, a judges appointment is automatically terminated the moment he leaves Islam.
4. Insanity: More precisely, if a judge loses his aptitude to be held legally accountable, he is no longer suitable for his judicial post.
5. Complete loss of hearing, sight, or the faculty of speech: The majority of jurists agree that if a judge is afflicted with the loss of any of these faculties, he loses his post as judge.
6. Debilitating illness: If a judge is afflicted with an illness from which he is not expected to recover, and this illness makes him incapable of performing his duties, then he loses his position as judge.
7. Expiry of term of office: If the political authority appoints a judge for a one-year term, then his term of office comes to an end after one year. Likewise, if he is appointed to decide on a specific case or set of cases, then his term of office ends when he finishes rendering verdicts for those cases.
8. Resignation: A judge may be relieved of his duties if he tenders his resignation and the political authority approves it.
9. Death: Death nullifies the legal capacity to act in any way whatsoever. Thus, the judges term of office ends immediately upon death.
Litigation and Presenting Evidence
A judge does not deliberate on peoples disputes unless they are brought before the court in the form of a lawsuit. The manner in which a judge hears a case is referred to as the principles of hearing a case. Likewise, a case is proven before a judge in certain, recognized ways, known as the procedures of evidence.
The reason for all of these procedures and principles is to make the judicial process orderly and familiar to the litigants. They also make the process of arriving at the truth and ensuring that people receive what is rightfully theirs clearer, more certain, and free from pitfalls and unnecessary delays. These principles also ensure that cases are heard as soon as possible.
It should be pointed out that the cases that take priority, without a special request, are those concerning people in prison, out of fear that someone is being imprisoned who does not belong there. Their cases should be heard quickly, so that their guilt or innocence may be determined and the innocent ones can be set free.
Thereafter, the judge, without a special request, looks into cases concerning the executors of the estates of orphans and the insane, and those presiding over bequests to the poor. He affirms the executorship of those who are trustworthy and capable, provides assistance to others who are weak, and removes people of bad character from their positions as executors.
He then looks into cases involving lost property that a previous court decision demanded to be saved. The judge decides which things should be sold and their price kept for their owners and which things should be retained in their original form.
The lawsuit and the conditions for its validity:
A lawsuit is a claim presented by a plaintiff in front of a judge, whereby he informs the judge that he has a right over the defendant that he demands be restored to him and that he wishes for the judge to rule in his favor against the defendant. There is no specific wording required for this claim. The general rule here is that any wording that conveys the meaning given in the definition above is acceptable, valid, and will be entertained by the judge if the following conditions are met:
1. The plaintiff and defendant are both in possession of their rational faculties.
2. The right being claimed by the plaintiff is clearly recognizable, is addressed by law, and falls under the jurisdiction of the courts.
3. The right being claimed is not rationally or practically impossible. An example of a rationally impossible claim is where a person claims paternity over another who happens to be older than he is. An example of a claim that is practically impossible is where a person who is well known to be extremely poor claims to have loaned another a substantial sum of money.
4. The claim, if substantiated, must entail some sort of necessary obligation on the part of the defendant. Thus, if a person claims, for example, that he is poor and that another person in his neighborhood is wealthy and then demands a portion of the others wealth on that basis alone, then his claim will not be entertained by a court of law, because such a claim, if substantiated, does not place the defendant under any legal obligation to pay the plaintiff anything.
Courtroom etiquette:
Before discussing how a case is presented before a court of law, we should mention that the courtroom is a place of seriousness, sobriety, and respect. It is not a place for frivolous behavior, protracted speeches, and bad manners. This applies to the litigants, the witnesses, and everyone else present in the courtroom. When the judge takes his seat, he should be in a presentable state, completely prepared to hear the cases that will come before him and to consider all the evidence that will be presented to him. For this reason, the Prophet (peace be upon him) said: No one should judge between others when he is in a state of anger.
The Prophet (peace be upon him) mentioned anger specifically, but his statement can be extended to every other state of mind that might have a similar effect. On this basis, the jurists have ruled that the judge should be free from severe hunger of thirst, excessive joy or grief, and extreme worry. He should not be in need of relieving himself or be overly tired. All of these things can compromise his mental state and his ability to properly consider the testimony of the litigants.
The judge should not let his gaze wander. He should speak as little as possible, limiting himself to the relevant questions and answers. He should not raise his voice except when necessary to check impertinence. He should keep a serious expression at all times, but without showing anger. He should sit in a calm and stately manner. He should neither jest nor speak about matters unrelated to the case at hand.
He should present himself in a manner that commands the respect of others, even in his manner of dressing and grooming.
The litigants should not speak unless the judge addresses them, asks them a question, or gives them permission to speak. When one of the litigants is given permission to speak, the other must listen quietly and not interrupt him. When the first litigant is finished speaking, the other may then ask the permission of the judge to address the court. If permission is granted, he may speak. Otherwise, he should remain silent.
The judge must listen to the litigants without showing any sign of annoyance. He should not cut them off unless they start shouting. He should then reproach them until they quiet down.
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The greatness of Islamic justice
Equality before the Law
Islam's rulings concerning civil rights do not differ from its rulings concerning the aforementioned rights. Islam treats all people equally before the law and grants them equal civil rights without any discrimination between a beggar and a prince, or a nobleman and a man of modest birth.
The Second Rightly Guided Caliph, `Umar ben Al Khattab, who was responsible for organizing the administration of justice in the muslim state upon the firm foundation of the Holy Quran and the Traditions of the Prophet, said in his first speech after becoming Caliph: "O people I swear by God that there is no man among you as powerful as he who is helpless until I restore his rights to him, and there is no man amongst you as helpless as he who is powerful until I restore what he had usurped to its rightful owner".
`Umar ben Al Khattab's message to Abu Mousa Al Ash'ary concerning the administration of justice embodied the greater part of the rulings of the Faith of Islam on justice. He wrote "From the servant of God, `Umar ben Al Khattab, Commander of the Faithful, to the servant of God, Ibn Qays, Peace be upon you.
The administration of justice is a religious duty and a tradition from the Prophet to be observed, so understand thoroughly the cases presented before you and enforce the sentence that you know to be just, for declaring the truth without executing justice is not just. Treat all people who stand before you equally in the way you greet them, address them and judge them. By so doing no nobleman would expect or hope for an unjust sentence in his favour and no poor man would despair of your just ruling''.
Umar ben Al Khattab's last testament to his successor as Caliph was :
"Treat all people equally and do not be influenced by any person who deserves punishment, and take no notice of any person's censure provided you have pronounced a just sentence. Never allow your preference or partiality for any person to influence your judgement in the affairs of the people whom God has entrusted to our authority."
The matter of equality in Islam was not limited to merely declaring principles and establishing laws, but history records that these principles and laws were executed solemnly and conscientiously during the lifetime of the Prophet Muhammad, blessings and peace be upon him, and during the reign of the Four Rightly Guided Caliphs who succeeded him, during the Golden Age of Islam which represents the principles and spirit of Islam in every respect Usama ibn Zayd, one of the most beloved companions of the Prophet Muhammad, prayer and peace be upon him, once attempted to intercede with him on behalf of Fatima daughter of Al Aswad Al Makhzoumiya who had been sentenced to the punish- ment of theft for stealing velvet material and golden ornaments. The Prophet, blessings and peace be upon him, refused Osama's intercession, in spite of his affection for him, and reprimanded him severely saying "How can you intercede with me concerning a penalty ordained by God Almighty Allah." Then he said to the people who had witnessed the matter : "Before the advent of Islam, people of noble descent were not punished if they were guilty of theft and poor indigent people were punished for the same crime. I swear by God Almighty, that if my daughter Fatima were guilty of the crime of theft, I would sentence her to the punishment ordained by God Almighty."
A Jew once lodged a complaint to the Caliph `Omar ben Al Khattab against `Ali Abu Talib. When they both stood before the Caliph `Omar, he addessed the Jew by his name and addressed `Ali Abu Talib by his appellation of Abu Al Hasan (the Father of Hasan) as he was accustomed to addressing him. `Ali showed signs of displeasure and the Caliph `Umar asked him if he had resented his adversary being a Jew with whom he had been obliged to stand on equal footing before the Caliph. `Ali Abu Talib replied that that had not been the cause of his displeasure, the reason being that the Caliph had addressed the Jew by his name whereas he had addressed him by his appellation of Abu Al Hasan, which is a sign of respect and veneration. `All ben Abu Talib had thus expressed his displeasure because `Umar ben Al Khattab had inadvertantly treated him with more respect than his adversary.
A son of `Amr ben Al `Aas, the governor of Egypt, once struck a man of the lower class. The man swore that he would lodge a complaint to the Caliph `Umar ben Al Khattab. `Amr ben Al Aas's son told the man to do so, boasting that the Caliph would never punish him, since he was the son of the noble ruler of Egypt. Later, during the pilgrimage season when the Caliph `Omar, his retinue, `Amr ben `Al `Aas and his son were assembled together, the man whom `Amr's son had struck went to the Caliph, and pointed to the son of `Amr ben Al `Aas and said : "This man struck me unjustly and when I threatened to complain to you, he told me that he was the son of a nobleman and that you would never punish him".
The Caliph `Umar ben Al Khattab looked at `Amr ben Al `Aas and uttered his famous words "What right have you to enslave people, whose mothers gave birth to them as free people?" He then gave the man who had lodged his complaint a whip and told him to strike the son of the nobleman - namely the son of `Amr ben Al `Aas - as he had struck him.
On a certain occasion, the Caliph `Umar witnessed a man and a woman committing adultery, so he assembled the people around him and said : "How should the Caliph of the Muslims act when he witnesses the sin of adultery being committed ?"
`Ali ben Abu Talib replied : "There must be four witnesses to the sin of adultery and if he cannot present these witnesses and he accuses the man and woman of adultery, he must be punished for the sin of slander without sufficient evidence, as any other person would be punished in a similar situation".`Ali ben Abu Talib then recited the following Quranic verse: "And those who launch a charge against chaste women and produce not four witnesses (to support their allegations), - flog them with eighty stripes; and reject their evidence ever after ; for such men are wicked transgressors" [2].
The Caliph `Umar did not reply nor did he reveal the identity of the man and woman whom he had witnessed committing the sin of adultery.
Islam applies the principle of equality in its treatment of Muslims and non-Muslims. Islam ordains that non-Muslims living in a Muslim state or in a state under Muslim rule have the same rights and obligations as their fellow Muslims. They are subject to the Muslim laws of justice except in matters concerning their religion. Accordingly their faith and beliefs are respected by the state and the community in which they live.
Another example of Islamic Justice
Allah created man to be His servant and to implement His way on earth. If humans distance themselves from this message, then they distance themselves from Gods injunctions. That is why Islam has prepared its followers to follow this righteous instinct, it is a joy to our spirit to stand and think of the greatness of Islamic justice, how fair Islamic law is to individuals and groups, rulers and the ruled!
Let us visit one of Islams greatest and brightest symbols of justice, Shurayh Al-Qaadhi (the judge), who narrates: The Caliph `Umar ibn Al-Khattaab bought a horse from a bedouin, paid its price and rode off with it. However, after traveling a little distance, the Caliph noticed some kind of defect in the horse so he returned to the seller, requesting him to take it back since it was defective. The man refused, telling the Caliph that the horse was perfectly healthy when it was sold to him. `Umar told the man to choose a judge and the man suggested Shurayh bin Al-Haarith Al-Kindi whom `Umar accepted.
After the judge listened to the bedouins testimony, he turned to `Umar asking: Was the horse normal and healthy when you bought it? `Umar replied: Yes, it was. Shurayh then said: Then keep what you bought or return it as you took. Umar looked at Shurayh in admiration saying: Thus justice should be -- statement, distinguishing words and fair justice I give you the position of Chief Justice of Koofah in Iraq.
This is Islamic justice, an ordinary bedouin taking the Caliph to court, deciding which judge to go to and the Caliph accepting the judges decision voluntarily. However, this leader was not an ordinary man, but the one about whom the Prophet , said: O Allah! Make Islam victorious by one of the two `Umars (becoming Muslim).
`Umar did not threaten the bedouin or misuse his power, neither did he tell the bedouin that he had exceeded his authority nor that he would get back to him. No, `Umar accepted the judges decision with all modesty.
`Umar admitted that the horse was healthy when he took it and he accepted the judgment, making the case an everlasting example of Islamic justice. The judges fairness made Umar appoint him as a judge of Koofah. He rewarded the judge for his justice and fairness and did not jail him for ruling against him, as some leaders may have done in present so-called democracies.
Another example of Shurayhs justice
Ali bin Abi Talib lost a shield that was dear to him and later found it in the hands of a non-Muslim citizen who was selling it in one of Koofahs markets. When he saw it, Ali said: This is my shield that fell off my camel on so and so night at such and such time. The man answered: No, this is my shield in my hand. Ali replied: No, it is mine since I never sold or gave it to any one.
The man agreed to let a judge decide, which Ali accepted. They went to Shurayh who asked Ali for his side of the story. Ali said that the shield was his and that he had found it with that man, it had fallen off his camel and he had never sold it or given it to anyone. The judge turned to the other man asking his story. The man said that he did not accuse Ali of lying, but the shield was his, as it was in his hands.
Shurayh turned to Ali saying: I believe you, but we need the statement of two witnesses to back your story. Ali said that there was his aide Qanbar and his son Al-Hassan to which the man replied that a son could not testify for the benefit of his father. Ali said: O God, a man who is promised paradise cannot act as a witness! Have you not heard what the Prophet , said that Al-Hassan and Al-Hussayn were the masters of the youths of paradise? Shurayh said: Yes I have, but a son cannot bear witness for his father.
Then Ali turned to the man and said: Take the shield, as I have no other witnesses.
The man, who was a non-Muslim, then said: O Ali, the shield is yours. What a great religion! I can sue Ali and get a judge to pass a decision for my benefit! I declare myself a Muslim. He told the judge that he was following the army and had seen the shield fall down and picked it up. Ali then told him to keep the shield and gave him a horse, besides. Soon after, the man was seen under Alis leadership fighting Al-Kharajites (dissenters). Are these two examples not sufficient for us to follow those great men?
Man is a social being by nature. He cannot live perpetually on his own, completely independent of others. People are interdependent. Consequently, friction arise between them when their personal interests come into conflict with each other, or when what they perceive as their individual rights infringe upon those of others. Conflicts between them inevitably break out. In some cases, one party to the conflict might be strong and aggressive while the other is weak and condescending, incapable of defending his rights.
Because of this, it becomes necessary for there to be a way to prevent people from oppressing one another, to ensure that the weaker members of society receive justice, and to determine right from wrong when issues get complicated or uncertain. This can only be realized through a judge that has the power to give legal verdicts in cases of dispute.
For this reason, we find that the existence of a judge is considered by Islamic law and the laws of all the other revealed religions to be both a religious obligation and a necessity of human life. Allah says:
We have sent Messengers with clear proofs, and sent down with them the Scripture and the Balance that mankind can establish justice.
Islam the religion that Allah wants for mankind from the time that He sent Muhammad (may he peace and blessings of Allah be upon him) until the Day of Judgment shows great concern for the judicial system and those appointed to carry out its responsibilities. Islam prescribes for it many legal injunctions. How else could it be, when Islam is the religion of mercy, equality, and justice? It is the religion that comes to free people from worshipping Creation and bring them to the worship of Allah. It is the religion that comes to remove people from oppression and iniquity and bring them to the highest degree of justice and freedom.
Allahs Messenger (peace be upon him) was the greatest of judges. He used to act in the capacity of judge in the city of Madinah, which was the first Islamic state. He used to appoint people to be judges in other cities. Among these were `Utb b. Asyad who was sent to Mecca, `Al b. Ab Tlib and Mu`dh b. Jabal, both of whom were sent to Yemen.
In the era of the Rightly Guided Caliphs, the head of state continued to be the one to appoint judges, govern their affairs, protect their independence, and keep the governors and political appointees and even the Caliphs subject to the judges verdicts. `Umar b. al-Khattb, the second Caliph, was the first person to make the judge an independent entity, distinct from the Caliph and the governors.
In this way, the judicial system continued to evolve throughout the early Islamic era, during the Umayyad era, and well into the Abbasid era. The office of Chief Justice came into being at this time. The Chief Justice became responsible for appointing and removing judges. He was responsible for supervising their behavior and monitoring their performance. The first person to be appointed to this post was the justice Ab Ysuf, the student of the great jurist Ab Hanfah (may Allah have mercy on them both). Thereafter, this office became widespread throughout the Muslim lands. It continued to exist up to the fall of the Ottoman Empire.
The names of many just judges have been preserved in Islamic History. Their names have become like synonyms for justice and integrity. Many pages in the history books are devoted to the lives and careers of eminent judges like Iys b. Mu`wiyah, Shurayh b. `Abd Allah, al-`Izz b. `Abd al-Salm and others who applied the teachings of Islam in the best possible manner. They give us a living example of how a Muslim judge is supposed to conduct himself.
We should mention, since we are discussing the Islamic judicial system, that Islam sets down broad guidelines and basic principles concerning the affairs of life and rarely concerns itself with the particular details of life. This is so these guidelines can stay relevant for every time and place. One of these guidelines is that establishing justice among people is an obligation that has to be carried out. As for the manner of achieving this objective, this has not been detailed by the sacred texts. This has been left for the people of each generation to deal with in a way most suited to their unique set of circumstances. The only condition is that whatever methods are chosen must not run contrary to Islamic Law.
In the pages that follow, we shall present the most important elements of the Islamic judicial system.
Defining the Judicial System and its Legal basis
The judicial system in Islam is a system for deciding between people in litigation with the aim of settling their disputes in accordance with the injunctions of the Divine Law, injunctions that are taken from the Quran and Sunnah.
All of the Messengers of Allah (may the peace and blessings of Allah be upon them) acted as judges. Allah says:
And remember David and Solomon, when they gave judgment concerning the field when peoples sheep had browsed therein at night, and We were witness to their judgment. And We made Solomon to understand the case. And to each of them We gave good judgment and knowledge.
Allah also says:
O David, verily we have placed you as a vicegerent on Earth, so judge between people in truth, and do not follow your desires for it will mislead you from the path of Allah. Verily, those who stray from the path of Allah have a severe punishment because they forgot the day of reckoning.
Prophet Muhammad (peace be upon him), who came with the final and eternal Message, was ordered by Allah to pass judgment in disputes just as he was ordered to spread the word of Allah and call people to Islam. This is mentioned in the Quran in a number of places. Allah says, for instance:
- So judge (O Muhammad) between them by what Allah has revealed and do not follow their vain desires, but beware of them lest they turn you away from some of what Allah has sent down to you.
- And if you judge (O Muhammad), judge between them with justice. Verily, Allah loves those who act justly.
-But no, by your Lord, they shall have no faith until they make you (O Muhammad) judge in all their disputes and find in themselves no resistance against your decisions and accept them with full submission.
The Sunnah also provides for the legal basis of the Islamic judicial system. It is related by `Amr b. al-`As (may Allah be pleased with him) that the Prophet (peace be upon him) said: If a judge gives a judgment using his best judgment and is correct, then he receives a double reward (from Allah). If he uses his best judgment but makes a mistake, then he receives a single reward.
Allahs Messenger (peace be upon him) said: You should not wish to be like other people, except in two cases: a man who Allah has given wealth and he spends it on Truth and another who Allah has granted wisdom and he gives verdicts on its basis and teaches others.
Many scholars have related to us that there is consensus among Muslims on the legal status of the judicial system in Islam. Ibn Qudmah says: The Muslims are unanimously agreed that a judicial system must be established for the people.
A judicial system is a necessity for the prosperity and development of nations. It is needed to secure human happiness, protect the rights of the oppressed, and restrain the oppressor. It is the way to resolve disputes and ensure human rights. It facilitates enjoining what is right, forbidding what is wrong, and curbing immoral behavior. In this way, a just social order can be enjoyed by all sectors of society, and every individual can feel secure in his life, property, honor, and liberty. In this environment, nations can progress, civilization can be achieved, and people are free to pursue what will better them both spiritually and materially.
Oppression is an unfortunate human characteristic. If people were completely just, judges would never work and would have no purpose.
The Islamic Ruling Concerning the Judiciary
The jurists agree that the duties of the judge are an obligation that must be carried out by society. If some members of society carry out this duty, it is sufficient for everyone. If, on the other hand, everyone neglects it, then everyone in society is sinful.
The proof that these duties are obligatory comes from the Quran:
O you who believe! Stand out firmly for justice.
It is only necessary for a small number of individuals to perform judicial duties since judicial concerns come under the broad duty of enjoining what is right and forbidding what is wrong. It is not obligatory for every individual to carry out this duty as long as some people are doing so.
The affairs of the people will not be correct and upright without a judicial system. It is, consequently, obligatory for one to exist, just like it is necessary to have a military. Ahmad said: People have to have a judicial authority or their rights will disappear.
The duties of the judiciary include enjoining what is right, helping the oppressed, securing peoples rights, and keeping oppressive behavior in check. None of these duties can be performed without the appointment of a judiciary.
Consequently, their appointment is obligatory on the basis of the following juristic principle: Whatever is needed for a legal obligation to be carried out is also obligatory.
This is the general ruling regarding the judiciary. On the individual level, the ruling may differ, depending on the individuals circumstances. It is obligatory for a person who is capable of performing these duties to do so when there is no one else available who is qualified. It is disliked for a qualified person to take the post, if someone else is available who is more qualified to do so. It is forbidden for a person to take the post if he realizes he is not capable of doing so or because he knows that he is easily tempted to be unjust. If a person is one of a number of equally qualified candidates, then it is permissible for him to assume the post of judge or to decline it.
The great jurist, Mlik, was asked: Can a man be forced to accept the post of judge?
He answered: Yes, if there is no one else to fill the post.
He was then asked: Even if this means beating him or imprisoning him?
Mlik replied: Yes.
The Qualifications of a Judge
The jurists have given us a number of qualifications that a judge should meet so that he will be able to properly perform his duties. They are:
1. Maturity: A minor cannot be appointed as a judge. If he is appointed, then his decisions will not be binding. Allahs messenger (peace be upon him) ordered us to seek refuge from the rule of children. Ahmad relates that Allahs Messenger (peace be upon him) said: Seek refuge with Allah from the rule of children and the leadership of children. Refuge is only taken from harmful things. Thus, appointing children to official posts is a harmful practice. Also, a minor does not have custody over himself, so how can he be granted authority over others by being appointed to the post of judge or, for that matter, any other official post?
A judge needs not only to have a sound mind and body, he needs to be deeply insightful and have opinions of high quality. It is not necessary for a judge to be advanced in years. He must fulfill all the other necessary qualifications and be at least past the age of puberty, even if he is very young. It is related that the Caliph al-Mamn appointed Yahy b. Aktham as the judge of Basra when he was eighteen years old. Some people criticized his appointment, so al-Mamn wrote to Yahy asking him how old a judge should be. Yahy wrote back, saying: I am as old as `Itb b. Usaid was when Allahs Messenger (peace be upon him) appointed him as judge over Mecca.
At the same time, being older is desirable, because it increases the dignity and prestige of the judge. The jurists consider these traits desirable for a judge.
2. Sanity: It is not permissible for an insane or mentally challenged individual to hold the position of judge. Likewise, a person whose judgment is impaired on account of old age or sickness should not act as a judge. This qualification is comparable to that of maturity. In fact, it is even more serious than age. If such a person is appointed as judge, then his decisions will not be binding. The jurist al-Mward writes:
This condition is unanimously agreed upon. To meet this qualification, a persons mind must be sound enough for the person to be legally accountable for his actions. He must be intelligent and able to perceive what is necessary to be able to discriminate between things. He must not be absent-minded and neglectful. He must be intelligent enough to see difficult situations clearly and solve difficult problems.
3. Freedom: A judge must enjoy complete freedom. He should not be a slave at all, not even a slave in the process of buying his freedom or a runaway slave. If such a person is appointed to a judicial post, his decisions will not be binding.
The reason for this is that a slave does not have complete custody over himself, so he should not be put in a position of authority over the affairs of others. A slave is liable to work for the interests of his master. Moreover, the judicial post is a position of honor and prestige that must be able to deter hardened criminals and deviants. This will not happen if the judge is a slave. This, at least, is the view of the majority of jurists. The jurist Ibn Hazm sees that the appointment of a slave is acceptable. His argument is that a slaves testimony is acceptable, and the qualifications for a judge, in his opinion, are the same as the conditions for accepting a persons testimony.
4. Islam: A judicial post is a post of binding, legal authority. An unbeliever should not be given such authority over a Muslim. Allah says:
Allah will never grant the disbelievers a way over the believers.
Moreover, a judge must apply the injunctions of Islamic Law, and this is, in itself, a religious act.
Carrying out a religious act requires faith on the part of the one performing it. It also requires fear of Allah to ensure that no deviation takes place in carrying out its injunctions. This is not possible for a Non-Muslim, because he does not believe in Islam in the first place. His disbelief is likely to cause him to purposefully violate Islamic injunctions or disregard them completely.
There is no disagreement among the jurists about this condition with regard to a judge appointed to pass judgment over Muslims. As for a judge appointed to deal exclusively with cases concerning Non-Muslims, most jurists insist that he still be Muslim, because they consider Islam to be a necessary qualification at all times. The jurists of the Hanaf school of law permit the appointment of a Non-Muslim judge to decide cases between Non-Muslims living in an Islamic state. They argue that competency to act as a judge is similar to the competency to give testimony. A Non-Muslim living in an Islamic state is competent to give testimony for or against other Non-Muslims; thus, he is competent to sit in judgment of them.
The fact that he is a judge exclusively for Non-Muslims in no way diminishes his authority or status, just like the appointment of a Muslim judge to deal with a certain group of Muslims does not take away from his authority.
The jurist al-Mward sees the appointment of Non-Muslim judges for Non-Muslims to really be an executive appointment in the guise of a judicial one. He argues that the Non-Muslims have the option to take their disputes to the Muslim courts. In this case, the Muslim courts will decide whether or not they want to intervene. Allah says:
So if they come to you (O Muhammad), either judge between them or turn away from them.
If, on the other hand, they take their dispute to their own courts, then and only then, must they adhere to their courts decision. This is because of a deliberate choice on their part. Before making such a choice, they were not compelled to accept the decision of their own courts.
5. Male gender: This is considered by a great number of scholars to be a necessary qualification. They consider it impermissible for a woman to be appointed as a judge. If she is appointed, the one who appointed her is a sinner and her appointment is void. Her decisions are not binding, even on issues where her testimony would be accepted. Their proof is the statement of the Prophet (peace be upon him): A people will never be successful if they put a woman in charge of their affairs.
A woman is not allowed to be appointed as the highest political authority, that of leading the state. Nor can she be a provincial governor. For this reason, it has never been related that the Prophet (peace be upon him) or any of his successors among the Rightly Guided Caliphs ever appointed a woman as a judge or a provincial governor. If it were permissible, it would have occurred at least once in at least one province.
Another argument advanced to support this view is that a judge must mix freely in the company of men, including jurists, witnesses, and disputants, whereas a woman is generally not permitted to mix with men unnecessarily, because of the harm that might come to her on account of it.
The jurists of the Hanaf school of law permit a woman to act as judge, but do not permit her to preside over cases involving capital crimes that require prescribed legal punishments or retribution. The reason for this is that her testimony is not acceptable in such cases.
The jurist Ibn Jarr al-Tabar does not consider being male a qualification at all. In his opinion, a judge who passes a verdict in a case is no different than a jurist who gives a decision on a matter of law. Since a woman can perform the latter function, she can therefore be a judge in any capacity. This opinion is also held by the jurists of the Zhir school of law.
6. Upright character: Most jurists recognize this qualification as a condition for every position of binding, legal authority. This means that a judge must perform all the obligatory religious duties, be honest, have apparent integrity, be free from sinful and licentious behavior, keep away from dubious activities, conform to social norms, and be a model of good behavior in his religious and worldly affairs. It is not permissible to appoint an immoral person to a judicial post, because being a judge is one of the greatest trusts that a person can be given.
7. The capacity for independent juristic reasoning: A judge should be capable of deriving the Law from its sources. He must have sufficient knowledge of the Quran and Sunnah to know where to find both general and specific legislations. He must know where to find the texts that clarify ambiguous ones. He must be able to differentiate between abrogated rulings and the texts that abrogate them. He must know which parts of the Sunnah have unquestioned validity and be able to differentiate between complete and incomplete chains of narration and the quality of the narrators. He must be knowledgeable in the Arabic language and its grammar. He must have knowledge of the points of consensus and disagreement in matters of Islamic Law from the time of the Prophets Companions onwards. He must be capable of juristic analogy.
8. Full sensory perception: What is required is the ability to see, hear, and speak. According to most scholars, this qualification is a necessary condition for being appointed as a judge. A deaf person may not be appointed as a judge, because he is not able to hear others when they speak. A blind person may not be appointed, because he cannot distinguish the plaintiff from the defendant by sight, nor the one admitting anothers right, nor the witness from the one being witnessed for or against. A person who cannot speak may not be appointed, because he cannot pronounce judgment and his sign language will not be understandable to the majority of people.
As for the soundness of the rest of his body, it is preferred but not required. The reason it is preferred is that it increases the prestige of the one who holds the post. This prestige, in and of itself, is preferred but not required. Thus, a judge may be crippled, an amputee, or blind in one eye. The same may be said for someone who has difficulty speaking, weak hearing, or limited sight, as long as the needed abilities are present.
It is proper to mention that a judge can only acquire his position through political appointment from the highest political authority or his appointed representatives. This helps to preserve Muslim unity and prevent civil strife. A judicial post is, without doubt, a political post; thus, it is not permissible for anyone but the supreme political authority to appoint someone to this position except in the most severe extenuating circumstances. For instance, if there is no political authority in a certain area, it becomes up to the people of knowledge who live there to appoint a judge to deal with their disputes. If a political leader comes into existence in the area later on, his permission will be necessary for the judge to retain his post.
Likewise, a judicial post can have a general jurisdiction or a specific one. It is possible for a judge to have jurisdiction over all the Muslim territories and over all types of cases. It is also permissible for the political authority to appoint a judge to a particular locality or limit his jurisdiction to a certain type of case, like judging between Non-Muslims. In either situation, the judge will not be allowed to preside over cases outside of his jurisdiction or outside of his specialty. The limits of his jurisdiction can be based on time, locality, or type of case.
Court Officials
A judge needs a number of other people to assist him in carrying out his duties. Among these officials are the following:
1. Advisory council: A judge must select for himself a number of scholars and other eminent people whose advice he can seek when deliberating on cases. He should be able to consult them on matters of Islamic Law, benefiting from them what injunction may be appropriate to apply in this case or that. This consultation is recommended, even if the judge is a scholar himself. `Umar b. al-Khattb used to consult with the leading and most scholarly Companions like `Al b. Ab Tlib and `Abd Allah b. Abbs (may Allah be pleased with them all).
The purpose of consultation is to ensure that the judge is aware of all the pertinent information that pertains to the case or that could affect his decision, information that he might otherwise have overlooked or forgotten. He also gets the benefit of hearing the verdicts that they suggest. The members of the advisory council should be capable of independent juristic reasoning and should all be of good character. This is so they will be able to assist the judge in determining the verdict in accordance with Islamic Law.
2. Court clerk: He is the one who sits before the judge and records everything that the judge dictates to him. The jurists recommend that the court clerk be of good character and have sufficient knowledge of Islamic Law.
3. Bailiff: He is the one who brings the litigants before the judge for him to decide their cases. His job is to assure that their cases are attended to in the proper order. This may be on a first-come first-serve basis, or on a predetermined system where certain types of cases take precedence.
4. Court usher: Among his responsibilities is that of informing the public of the times that the court is in session and the times when the judge takes his recesses. He has the responsibility of informing the judge of those who wish to have an audience with him, so that the judge can decide whether or not to receive them.
5. Translator: The judge may appoint one translator or more of good character. If a translator is needed for a certain language and none is employed by the courts, then a reliable and trustworthy translator may be brought in from outside. Two translators are preferable than one. A woman of good character can act as translator if necessary. Their job is to translate the statements of the plaintiff, the defendant and the witnesses for the judge if the judge does not understand their language.
6. Officer of the court: He is the one who stands at the head of the judge and orders the litigants to rise when it is time for them to leave the courtroom. He is a police officer who works to protect the judge and ensure the safety of the courthouse.
7. Court witnesses: These people can be summoned to the courtroom to witness the testimony of the litigants, memorize it, and present it to the courts when necessary. They should be of good character, sufficient to qualify them to act as witnesses.
8. Warrant officers: Their job is to bring the litigants into the courtroom if others have a claim over them. They should be religious and trustworthy.
9. Court investigators: These are people of good character chosen by the judge whose identities are not disclosed to the public. Their job is to vouch for the character of witnesses who they are asked about.
10. Disciplinary officers: These are a group of men of decent standing who are present in the courtroom to restrain people, litigants or otherwise, if they exhibit unruly behavior in the courtroom. They have the right to remove unruly people from the courtroom if they persist in their misconduct. These officers are also part of the police force.
11. Expert witnesses: These are people of good character chosen by the judge who have expertise in various fields that are needed by the court. This would include appraisers of value, land surveyors, and others.
12. Jailor: Among his duties is to report to the judge on a daily basis what goes on in the prisons.
This is order to ensure that no one is wronged and that no one remains imprisoned longer than he should.
It should also be mentioned that some of these officials are selected by the judge himself, like the members of the advisory council, the court investigators, and the court witnesses. Others are appointed by the state, like the court clerk, bailiff, and court usher. The court officials receive their pay from the state treasury according to the duties that they perform and their level of expertise. The judge should monitor the activities of his officials to assure that they conduct themselves properly and fulfill their duties.
The Independence of the Judiciary
Islamic Law, through the sacred texts and through its basic principles, prohibits the governing officials from interfering with or influencing the decisions of the court in any way. Islamic Law, in its general principles and individual statutes, seeks to realize its primary objective of establishing justice on the foundation of monotheism. Monotheism is not just lip service. It is realized through actions that verify the profession of faith. These actions must entail carrying out the commandments of Allah and preventing what Allah has prohibited. This is a collective responsibility of Muslim society. This requires that Allahs commands and prohibitions be applied as the standards of truth and justice. Whatever Allah has commanded is truth and justice and whatever He has forbidden is falsehood and oppression. Consequently, prohibiting what Allah has forbidden is truth and justice.
There are numerous verses in the Quran that command justice and forbid oppression. Allah says:
- Verily, Allah enjoins justice, doing good, and spending on ones relatives, and forbids licentious deeds, wrongdoing, and transgression. He admonishes you, so perhaps you might take heed.
- And let not the hatred of others dissuade you from justice. Be just, that is nearer to piety; and fear Allah. Verily, Allah is well acquainted with what you do.
- And if you judge (O Muhammad), judge between them with justice. Verily, Allah loves those who act justly.
- And whoever does not judge by what Allah has revealed, they are the disbelievers.
In the hadth, Allahs Messenger relates: Allah says: O My servants, I have prohibited oppression upon myself and made it prohibited between you, so do not oppress one another.
These are but a few of the sacred texts that show the obligatory nature of judging with justice and with what Allah has revealed. This is a general command, equally applicable to the one who governs and the one who is governed. The political power in Islam is bound by Allahs Law. There is no obedience due to the government if it requires disobedience to Allahs Law. This is the way our pious predecessors acted upon Islamic Law. The political leaders are merely appointed to the affairs of state. The true ruler is Allah. The Caliph or leader is but one of the Muslims, equal with the others. The Muslims are the ones who select him and place him in authority. They can monitor his activities. He must consult with them. If he violates Islamic Law and acts against the welfare of the people, they can have him removed from office.
In the past, the political leaders of the Muslim state understood that justice by which the heavens and the Earth are kept right is the basis for governing in Islam.
`Amr b. al-`As said: There is no political leadership without men. There are no men available without wealth. There can be no wealth without a prosperous civilization. Civilization cannot prosper without justice.
The Caliph `Umar b. `Abd al-`Azz wrote to one of his functionaries who sought permission to fortify his city: Its fortification is achieved through justice and through removing oppression from its streets.
Sa`d b. Suwayd said in one of his addresses in the city of Homs: O people, Islam has an impenetrable wall with a secure gate. Its wall is the truth and its gate is justice. Islam will remain inviolable as long as the political authority is stern. This sternness is not by whip or sword, but by judging with truth and applying justice.
For this reason the Rightly Guided Caliphs and the leaders of the Islamic state worked hard to bestow every possible dignity and honor on the judiciary and strove to protect it from all outside interference. They did this to ensure truth and justice. Therefore, they did not attempt to turn the court rulings to their favor or the favor of those they liked.
They, themselves, adhered to the decisions of the judiciary, respected them, and carried them out. They accepted the verdicts of the judge. Even when the rulings were against their own selves, they would dutifully carry them out. The history books are full of narrations where the Rightly Guided Caliphs and later Muslim governors were involved in litigation with others and the judges who they themselves appointed ruled against them. In some cases, the Caliph knew what the truthful outcome should be, but still allowed the case to go to court in order to set an example of conduct for those who would come after them. They would also do this to test the strength of the appointed judges in the face of such a situation where their adversary might even be a Jew or other Non-Muslim.
The judges, themselves, were no less concerned about these things than the governors were. The judge in his courtroom was an imposing and well-respected figure. He would not sway from the truth on account of criticism. He would treat the prince and the pauper equally. The history books give us some examples of this.
Al-Ash`ath b. Qays entered upon the judge Shurayh while he was in his courtroom. Shurayh greeted him and bade him sit next to him. At this time, a person came in with a case against al-Ash`ath. Shurayh then said: Stand up and take the defendants seat and address the other.
Al-Ash`ath said: On the contrary, I will speak to him from here.
Shurayh then said: Will you stand on your own, or must I bring someone in who will make you stand? At this point, he stood up and took his place as ordered.
Ab Ysuf one of historys most extraordinary judges - has a case brought before him where a man claimed that he owned a garden that was in the possession of the Caliph. Ab Ysuf had the Caliph appear in court and then demanded that the plaintiff bring his proof. The plaintiff said: The caliph misappropriated it from me, but I have no proof, so let the Caliph take a solemn oath.
The Caliph then said: The garden is mine. Al-Mahd purchased it for me but I find no contract for it.
Ab Ysuf bade the Caliph thrice to testify under oath, but the Caliph would not do so. At this point, Ab Ysuf ruled in favor of the plaintiff.
The Caliph, Ab Ja`far al-Mansr, once wrote to Siwr b. `Abd Allah, the presiding judge in Basra: Look at the land that so-and-so the general and so-and-so the merchant are disputing about and give the land to the general.
Siwr wrote back: The proof has been established before me that the land belongs to the merchant. I will not take it from him without proof.
Ab Mansr wrote back: By Allah, besides Whom there is no other god, you will not take it from the merchant without right. When the judges letter had reached him, he had said: I have filled it, by Allah, with justice, and my judges have begun to refuse me with the truth.
Islam did not stop at prohibiting the political leadership from interfering with the decisions of the judge. It went further, providing other guarantees to ensure that the judiciary would remain strong and independent.
Since the judge holds such a prominent and serious position in society being that he is the one who decides between others in their disputes it is necessary for him to enjoy the respect and trust of the people so that they will be content in accepting his judgments as just. A judge will not be able to attain this public esteem except with some concrete proof of his character.
He provides this proof through his good conduct that must be free of eccentricities and through his unyielding adherence to justice when passing judgment. The jurists stress this point and discuss the types of behavior and work that a judge should stay away from. Without doubt, the things that they mention are not exhaustive, but are merely given by way of example.
A Judges Behavior and Conduct
The general rule of thumb for a judges behavior and conduct is that it should be acceptable to the public and not open up opportunities for people to doubt his integrity and impartiality.
The following are among the things mentioned by the jurists:
1. He is not allowed to engage in business: The great jurist al-Shfi` said: It is disliked for him (i.e. the judge) to engage in buying and selling, because it is feared that he will receive unfair advantages or excess. The problem is that if he engages in commerce, it cannot be assured that he will not receive favors and preferential treatment from some people that might, in turn, cause him to give preferential treatment to them in the courtroom. All other forms of commercial dealings should be considered in the same light as buying and selling.
2. He is not permitted to accept gifts: A judge should never accept a gift from one of the litigants, because this puts him under suspicion of partiality. In truth, it is disliked for a judge to accept a gift from anyone, whether he be a litigant or not.
When `Umar b. `Abd al-`Azz refused a gift, it was said to him: The Prophet (peace be upon him) used to accept gifts. At this, `Umar said: These things were gifts for the Prophet (peace be upon him), but they are bribes for us, because the Muslims used to seek nearness to the Prophet (peace be upon him) with gifts on account of his prophethood.
Another difference is that the Prophet (peace be upon him) was divinely protected from error, so what is feared from others who receive gifts was not feared from him.
All forms of benefit that a judge may receive from another person under his jurisdiction should be treated in the same way as gifts.
3. He should not engage in any socially unacceptable behavior: Added to what has been mentioned already, a judge is supposed to be dignified, venerable, and distant from anything that might injure his reputation or be unseemly for a judge to get involved in. He should not socialize excessively with others. This protects him from being affected by them, which could compromise his impartiality. Likewise, he should not stay away from public gatherings where his attendance is appropriate.
He should avoid jesting and making other people laugh, whether he is in their company or they in his. All of this can detract from the dignity and venerable status that a person needs to have as a judge.
Likewise, when he speaks, he should maintain the highest standard of speech possible, free from errors and defects. It should also be free from the ridicule of others and haughtiness.
In order to maintain the appearance of judicial independence, it is not permitted in Islamic Law, according to the majority of jurists, for the political authority to remove a just judge from office unless the public welfare requires it. A valid reason might be to appease a large sector of the population or to appoint another person who is much more qualified for the post. If a judge is removed without a valid reason, then his appointment remains intact.
Material factors have a great influence over the lives of people. Islamic Law takes this into consideration when dealing with the issue of preserving the independence of the judiciary.
A judge must be totally preoccupied with the duties of his office. He is prohibited from earning an income through commerce, and furthermore has to maintain the highest standards of decorum and decency in his frequent dealings with other people. These things are all necessary in order for him to earn the respect of others and maintain his judicial independence. These being his circumstances, he must receive a salary from the public treasury commensurate with his standard of living so he will not be forced to earn an income in a manner that is inappropriate for a person of his standing.
The jurists have stated that a judge should receive a salary from the public treasury. Ibn Qudmah, in his discussion on the income of a judge, mentions the different views of the jurists then writes:
The correct view is that it is permissible for a judge to take a salary for his services in any situation, because Ab Bakr (may Allah be pleased with him) was given a salary of two silver pieces a day when he became Caliph. We have already mentioned that `Umar (may Allah be pleased with him) gave salaries to Zayd, Shurayh, and Ibn Mas`d. If salaries are not provided, the judicial system would be overturned and there would be no way to preserve the rights of the public.
Termination of the Judges Term of Office
There are a number of ways that a judge can be removed from his post. The most important of these are as follows:
1. Removal of the judge by the political authority or a representative thereof: This is allowed for the political authority in certain cases. A judge can be removed if the political authority finds:
1. another person who is more qualified for the post.
2. that the judge in office is incompetent.
3. that the judge admits to purposeful injustice.
4. clear evidence demonstrating the willful injustice of the judge.
`Umar b. al-Khattb (may Allah be pleased with him) removed Sharhabl b. Hasanah from his judicial post. Sharhabl asked him: Did you remove me from my post because you are displeased with me? `Umar replied: No, but I found another who is as decent as you are, but better in performing his duties. Sharhabl then said: O Commander of the Faithful, being removed from ones post by you is a shameful thing, so tell the public the reason why you did so. `Umar then did as Sharhabl requested.
2. Bad character: If a judge commits certain sinful deeds that remove from him the legal requirements of good character drinking, for instance, or any other major sin then his appointment is automatically terminated. Ibn Qudmah writes:
If the judges circumstances are changed through immoral behavior, loss of sanity, debilitating illness, or loss of one of the necessary qualifications for being a judge, he must be removed from office because of that, and the political authority has no alternative but to remove him.
3. Apostasy: Islam is a necessary condition for a judge to be appointed and for him to remain in office. For this reason, a judges appointment is automatically terminated the moment he leaves Islam.
4. Insanity: More precisely, if a judge loses his aptitude to be held legally accountable, he is no longer suitable for his judicial post.
5. Complete loss of hearing, sight, or the faculty of speech: The majority of jurists agree that if a judge is afflicted with the loss of any of these faculties, he loses his post as judge.
6. Debilitating illness: If a judge is afflicted with an illness from which he is not expected to recover, and this illness makes him incapable of performing his duties, then he loses his position as judge.
7. Expiry of term of office: If the political authority appoints a judge for a one-year term, then his term of office comes to an end after one year. Likewise, if he is appointed to decide on a specific case or set of cases, then his term of office ends when he finishes rendering verdicts for those cases.
8. Resignation: A judge may be relieved of his duties if he tenders his resignation and the political authority approves it.
9. Death: Death nullifies the legal capacity to act in any way whatsoever. Thus, the judges term of office ends immediately upon death.
Litigation and Presenting Evidence
A judge does not deliberate on peoples disputes unless they are brought before the court in the form of a lawsuit. The manner in which a judge hears a case is referred to as the principles of hearing a case. Likewise, a case is proven before a judge in certain, recognized ways, known as the procedures of evidence.
The reason for all of these procedures and principles is to make the judicial process orderly and familiar to the litigants. They also make the process of arriving at the truth and ensuring that people receive what is rightfully theirs clearer, more certain, and free from pitfalls and unnecessary delays. These principles also ensure that cases are heard as soon as possible.
It should be pointed out that the cases that take priority, without a special request, are those concerning people in prison, out of fear that someone is being imprisoned who does not belong there. Their cases should be heard quickly, so that their guilt or innocence may be determined and the innocent ones can be set free.
Thereafter, the judge, without a special request, looks into cases concerning the executors of the estates of orphans and the insane, and those presiding over bequests to the poor. He affirms the executorship of those who are trustworthy and capable, provides assistance to others who are weak, and removes people of bad character from their positions as executors.
He then looks into cases involving lost property that a previous court decision demanded to be saved. The judge decides which things should be sold and their price kept for their owners and which things should be retained in their original form.
The lawsuit and the conditions for its validity:
A lawsuit is a claim presented by a plaintiff in front of a judge, whereby he informs the judge that he has a right over the defendant that he demands be restored to him and that he wishes for the judge to rule in his favor against the defendant. There is no specific wording required for this claim. The general rule here is that any wording that conveys the meaning given in the definition above is acceptable, valid, and will be entertained by the judge if the following conditions are met:
1. The plaintiff and defendant are both in possession of their rational faculties.
2. The right being claimed by the plaintiff is clearly recognizable, is addressed by law, and falls under the jurisdiction of the courts.
3. The right being claimed is not rationally or practically impossible. An example of a rationally impossible claim is where a person claims paternity over another who happens to be older than he is. An example of a claim that is practically impossible is where a person who is well known to be extremely poor claims to have loaned another a substantial sum of money.
4. The claim, if substantiated, must entail some sort of necessary obligation on the part of the defendant. Thus, if a person claims, for example, that he is poor and that another person in his neighborhood is wealthy and then demands a portion of the others wealth on that basis alone, then his claim will not be entertained by a court of law, because such a claim, if substantiated, does not place the defendant under any legal obligation to pay the plaintiff anything.
Courtroom etiquette:
Before discussing how a case is presented before a court of law, we should mention that the courtroom is a place of seriousness, sobriety, and respect. It is not a place for frivolous behavior, protracted speeches, and bad manners. This applies to the litigants, the witnesses, and everyone else present in the courtroom. When the judge takes his seat, he should be in a presentable state, completely prepared to hear the cases that will come before him and to consider all the evidence that will be presented to him. For this reason, the Prophet (peace be upon him) said: No one should judge between others when he is in a state of anger.
The Prophet (peace be upon him) mentioned anger specifically, but his statement can be extended to every other state of mind that might have a similar effect. On this basis, the jurists have ruled that the judge should be free from severe hunger of thirst, excessive joy or grief, and extreme worry. He should not be in need of relieving himself or be overly tired. All of these things can compromise his mental state and his ability to properly consider the testimony of the litigants.
The judge should not let his gaze wander. He should speak as little as possible, limiting himself to the relevant questions and answers. He should not raise his voice except when necessary to check impertinence. He should keep a serious expression at all times, but without showing anger. He should sit in a calm and stately manner. He should neither jest nor speak about matters unrelated to the case at hand.
He should present himself in a manner that commands the respect of others, even in his manner of dressing and grooming.
The litigants should not speak unless the judge addresses them, asks them a question, or gives them permission to speak. When one of the litigants is given permission to speak, the other must listen quietly and not interrupt him. When the first litigant is finished speaking, the other may then ask the permission of the judge to address the court. If permission is granted, he may speak. Otherwise, he should remain silent.
The judge must listen to the litigants without showing any sign of annoyance. He should not cut them off unless they start shouting. He should then reproach them until they quiet down.
