The Islamic Judicial System

In the 1400 year history of the Islamic State, it was famous for its administration of justice, and its ability to protect the rights of the people, and this was the case in all the different fields of life, from personal to political. 

There are two people who are responsible for the implementation of Islam in such a manner – the Khaleefah and the qadi (judge). The Khaleefah executes the Islamic rules and implements them over the people, while the judge derives the Islamic verdicts for the different situations from their sources (i.e. the Qur’an the Sunnah, and whatever derives from them) and presents them for application. 

Accordingly, the judiciary is one of the fundamental pillars of the Islamic State and it is upon this that the ruling system depends for the implementation of Islam in the political life. There has been in the Islamic State a judiciary which administers justice, and judges who would judge between the people to ensure that Islam was constantly adhered to. 

This system of judiciary is nothing alien to Islam; indeed it derives from the Islamic ‘aqeedah and forms an integrated part of the Islamic way of life, complementing the other Islamic systems, like the Economic (Iqtisad) and Ritual (Ibadat) systems, making a perfectly functioning whole. 

Objective of the Judiciary 
The basis of the Judiciary is set in three principles :

1) that the application of the Islamic judgement on each and every issue is obligatory,

2) that it is forbidden to follow any Shari‘ah other than Islam, and

3) any Shari‘ah other than Islam is kufr (disbelief) and taghut (falsehood).

It is within the framework of these that the Judicial System of the Islamic State operates, and it is based around these that the definition of the judiciary (‘al-Qadha‘) is established from the Shari‘ah. 

 

Thus, the definition and purpose of the judiciary is “to allow the legitimate judges to provide the opinions about the divine rules on any situation, with the authority to enforce them.” 

 

Evidences for the Legitimacy of the Judiciary 

The foundation of the judiciary system and its lawfulness are derived from the Qur’an and the Sunnah. As for the Qur’an, Allah says, 

“But no, by your Lord, they will not believe (in truth) until they make you judge of what is in dispute between them and find within themselves no dislike of that which you decide, and submit with full submission.” [4:65] 

 

“Lo! We reveal unto you the scripture with the truth, that you may judge between mankind by that which Allah has shown you.” [4:105] 

 

“So judge between them by whatever Allah has revealed, and follow not their desires away from the truth which has come to you.” [5:48] 

 

These ayaat clearly indicate that it is legitimate to judge between the people and indeed that it is obligatory (fard) to do so, referring only to the system of Allah. 

 

As for the Sunnah, the Messenger of Allah (saws) was himself in charge of the Judicial System and he judged between people. Muslim reported on the authority of ‘A’isha (ra), wife of the Messenger of Allah (saws), that she said, “Sa‘ad ibn Abi Waqqas and Abd ibn Zama‘a disputed with each other over a young boy. Sa‘ad said: Messenger of Allah, he is the son of my brother Utbah ibn Abi Waqqas as he made explicit that he was his son. Look at his resemblance. Abd ibn Zama‘a said: Messenger of Allah, he is my brother as he was born on the bed of my father from his slave-girl. Allah’s Messenger (saws) looked at his resemblance and found a clear resemblance with Utbah, but he said: He is yours O Abd ibn Zama‘a, for the child is to be attributed to one on whose bed it is born, and stoning is for the adulterer.” 

This is proof that Muhammad (saws) judged between the people, and that his judgement carried authority to be implemented. 

 

Other Evidences of the Judiciary in Sunnah 

1. Abu Daud, Tirmidhi, Nissai, and Ibn Majah reported: 

Buraida said, The Messenger of Allah (saws) said, “The judges are three, two of them will go to the Hellfire and one will go to the Paradise. One knows the truth and he judges with it – he is in the paradise, one knows the truth and doesn’t judge by it, he will go to the Hellfire. The other doesn’t know the truth and judges between the people with ignorance – he will go to the Hellfire.” 

 

2. Ahmad and Abu Daud reported: 

Ali (ra) said the Messenger of Allah said, “Oh Ali, if two people come to ask you to judge between them, do not judge to the first one until you hear the word of the second one in order that you may know how to judge.” 

 

3. Bukhari, Muslim and Ahmad reported: 

Umm Salamah said, “Two men disputed about the inheritance and came to the Messenger of Allah (saws), neither having any proof. He said: Both of you bring your dispute to me and I am a man like you and one of you may have more eloquent speech, so I may judge in his favour. And if I judge for him something that does not belong to him and I take it as a right from his brother, he should not take it because whatever I give to him it will be a piece of Hellfire in his stomach and he will come bowing his neck on the Day of Judgement. Both of the men cried, and one man said, I give my share to my brother. The Prophet (saws) said go now together and divide the inheritance between you and seek the right from both of you and each one of you say to the other ‘May Allah forgive you’, and permit him what he takes in order for both of you to be rewarded.” 

 

4. Baihaqi, Darqutni and Tabarani reported: 

The Messenger of Allah (saws) said, “Whoever Allah tests by letting him become a judge, should not let one party of a dispute sit near him without bringing the other party to sit near him. And he should fear Allah by his sitting, his looking to both of them and his judging to them. He should be careful not to look down to one as if the other was higher, he should be careful not to shout to one and not the other, and he should be careful of both of them.” 

 

5. Muslim, Abu Daud and Al-Nissai reported: 

Ibn Abbas said, “The Messenger of Allah (saws) judged between the people by oath and witnesses.” 

 

6. Mawardi, in ‘The Etiquette of the Judge’, vol.1, p.123: 

“The Messenger of Allah (saws) appointed judges in the Islamic State; one of them was Imam Ali, one was Mu‘adh ibn Jabal and one was Abu Musa al-Ash‘ari.” 

 

7. Muslim reported: 

Abu Hurayrah said, “The Messenger of Allah (saws) was passing by the market and saw someone selling food. He put his hand on a plate of dates and found some of the dates were wet from underneath. He said ‘What is this?’ The man said ‘Some rain from the heavens, Oh Rasul Allah.’ The Messenger of Allah (saws) said, ‘You should put it on the top, whoever cheats is not one of us.’” 

 

All these ahadith clearly state the authenticity of judging and explain from different angles some of the elements of the Judicial System of the Islamic State: 

1. The ahadith indicate that people are motivated to become judges, due to the reward of the judge. 

2. The ahadith make terrified those people who want to become judges if they are not capable. 

3. The ahadith show us the usul (source) of disputing and the usul of judging, e.g. the Messenger of Allah (saws) told ‘Ali not to judge until he heard the statement of both parties. They show that we must have a court where both parties sit together and that the judge must listen to both parties. He said fear Allah at the way you look at them, talk to them and the way you judge between them. 

4. They show the foundation of appointing a representative. Because of the saying, ‘Be careful of those with good tongues’; so it is permissible to appoint someone to speak on your behalf. 

5. They prove that the Messenger of Allah (saws) took oaths and witnesses and that they are evidences which can be used in proving cases. 

6. They state types of judges, e.g. Qadi Muhtasib - who establishes justice and fair dealing in the market place. 

7. They state the authenticity of appointing judges, as per Mawardi – Imam ‘Ali and Mu‘adh ibn Jabal. 

 

The Hukm of the Judiciary 

It is agreed upon by the four schools of thought (i.e. Hanafi, Shafi‘i, Hanbali and Maliki) that the judiciary is fard kifayyah (sufficient fard) like the Khilafah. Accordingly, if there is no judiciary, there will be no judging by Islam, and the whole Muslim Ummah will be sinful for its absence. However, if there is a functional judiciary, that is fulfilling the role of administration of justice for the people, then the fard has been fulfilled, and the sin is removed from the necks of the Muslims. 

The Messenger of Allah (saws) said, “One day from a just Imam is better than worshipping sixty years, and the establishment of one hadud (an Islamic punishment) in the earth is better than rain for 40 years.” 

 

Here are some opinions of the distinguished scholars on the issue of the Judiciary: 

- Imam Sarkhasi considered that the judiciary is the strongest fard after iman, because it ensures Allah’s (swt) laws are implemented in practice. 

- Imam Ghazzali said that the judiciary is from the Jihad. 

- ‘Abdullah ibn Mas‘ud (ra) said, I prefer to sit as a judge between two people more than to perform 70 years of ibadat. 

 

The responsibilities of the Judiciary 

These are to: 

a) Settle the disputes between people, 

b) Prevent whatever harms the common rights, and 

c) Resolve the arguments between people and any person who forms part of the ruling system, be they rulers or employees, the Khaleefah or any other person. 

Islam defines that each of these roles are separate parts of the judiciary and that each are undertaken by different types of judges. 

 

The Appointing of Different Types of Judges

The Messenger of Allah (saws) used to appoint the judges; he appointed ‘Ali as judge over Yemen and he gave him instructions about how to judge by saying, “If two disputing persons came to you do not judge for either of them until you have heard what the other had to say.” He also appointed ‘Abdullah ibn Nawfal as judge over Madinah. 

However, all the judges were not of one type, and the areas over which they had jurisdiction varied according to the roles they were allocated. Some judges were concerned with the disputes between the people, others with settling whatever harms the common interest of the people and others dealt with the area of disputes between the people and those who were in authority over them. 

By Ustadh Abu Baraa'