22. THE JUDGE AND THE COURT
The necessary qualifications for being an Islamic judge (qadi) are:
a) to be a male freeman;
b) to have full capacity for moral answerability (taklil);
c) to be upright;
d) to possess knowledge (of the rulings of Sacred Law, meaning by way of personal legal reasoning (ijtihad) (from primary texts), not merely by following a particular qualified scholar (taqlid) (i.e. If he follows qualified scholarship, he must know and agree with how the rulings are derived, not merely report them). Being qualified to perform legal reasoning (ijtihad) requires knowledge of the rules and principles of the Koran, the sunnah (in this context meaning the hadith, not the sunnah as opposed to the obligatory), (as well as knowledge of scholarly consensus (ijma), and analogy, together with knowing the types of each of these. (The knowledge of each “type” below implies, familiarity with subtypes and kinds, but the commentator has deemed the mention of the category as a whole sufficient to give readers a general idea.)
(I) The types of Koranic rules include, for example:
1. those (‘amm) of general applicability to different types of legal rulings;
2. those (khass) applicable to only one particular ruling or type of ruling;
3. those (mujmal) which require details and explanation in order to be properly understood;
4. those (mubayyan) which are plain without added details;
5. those (mutlaq) applicable without restriction;
6. those (muqayyad) which have restrictions;
7. those (nass) which unequivocally decide a particular legal question;
8. those (zahir) with a probable legal signification, but which may also bear an alternative interpretation;
9. those (nasikh) which supersede previously revealed Koranic verses;
10. and those (mansukh) which are superseded by later verses.
(II) The types of sunnah (i.e. hadith) include:
1. hadiths (mutawatir) related by whole groups of individuals from whole groups, in multiple contiguous channels of transmission leading back to the Prophet himself (Allah bless him and give him peace), such that the sheer number of separate channels at each stage of transmission is too many for it to be possible for all to have conspired to fabricate the hadith (which is thereby obligatory to believe in, and denial of which is unbelief (kufr»;
2. hadiths (ahad) related by fewer than the above-mentioned group at one or more stages of the transmission, though traced through contiguous successive narrators back to the Prophet (Allah bless him and give him peace). (If a hadith is transmitted through just one individual at any point in the history of its transmission, the hadith is termed singular (gharib). If it is transmitted through just two people at any stage of its transmission, it is termed rare (‘aziz). If its channels of transmission come through only three people at any point of its history, it is termed well known (mashhur). These designations do not directly influence the authenticity rating of the hadith, since a singular hadith, for example, might be rigorously authenticated (sahih), well authenticated (hasan) (hadiths of both types being obligatory for a Muslim to believe in, though someone who denies them is merely considered corrupt (fasiq), not an unbeliever (kaflr)), or not well authenticated (da’if), depending on their liability ratings of the narrators and other factors weighed and judged by hadith specialists);
3. and other kinds; (Yusuf Ardabili mentions the following in his list of qualifications for performing legal reasoning (ijtihad):)
4. hadiths (mursa!) from one of those (tabi’i) who had personally met (N: not only met, but actually studied under) one or more of the prophetic Companions (Sahaba) but not the Prophet himself (Allah bless him and give him peace) (n: hadiths reported in the form, “The Prophet said [or did] such and such,” without mentioning the Companion who related it directly from the Prophet);
5. hadiths (musnad) related through a contiguous series of transmitters back to the Prophet (Allah bless him and give him peace);
6. hadiths (muttasil) related through a contiguous series of transmitters (either from the Prophet (Allah bless him and give him peace), such a hadith being termed ascribed (marfu’), or else only from one of the Companions, such a hadith being termed arrested (mawquf»;
7. hadiths (munqata’) related through a chain of transmitters of whom one is unknown (n: though if two or more are unknown, it is not considered merely incontiguous (munqata’), but rather problematic (mu’dal);
8. the positive and negative personal factors Uarh wa ta’dil) determining the reliability ratings of the individual narrators of a hadith’s channel of transmission;
9. the positions held by the most learned of the Companions (Sahaba) on legal questions, and those of the scholars who came after them;
10. and on which of these positions there is scholarly consensus, and which are differed upon (Kitab aI-an war Ii a ‘mal al-abrar fi fiqh aI-Imam al-Shafi’i (yll), 2.391).
(The English glosses and remarks on the meanings of the above hadith terminology are from notes taken by the translator at a lesson with hadith specialist Sheikh Shu’ayb Arna’ut.)
(III) Types of analogical reasoning (qiyas) include:
1. making an a fortiori analogy between acts p and q, where if p takes a ruling, q is even likelier to take the same ruling. For example, if saying “eff!” to one’s parents is unlawful (as at Quran 17:23), one may analogically infer that beating them must also be unlawful;
2. making an analogy between acts p and q, where if p takes a ruling, one may infer that q is equally likely to take the same ruling. For example, if it is unlawful to wrongfully consume an orphan’s property, then it must also be unlawful to destroy his property by burning it up;
3. and making an analogy between acts p and q, where if p takes a ruling, one may infer that it is likely, though less certain, that q takes the same ruling (because of a common feature in the two acts which functions as the basis (‘ilIa) for the analogy). For example, if usurious gain (rib a) is unlawful in selling wheat, then it is also unlawful in selling apples, the basis for the analogy being that both are food.
The meaning of knowledge of the above matters is (for a judge) to know part of what is connected with the Koran, sunnah (i.e. hadith), and analogy, not complete knowledge of the Book of Allah, total familiarity with the rules of the sunnah, or comprehensive mastery of the rules of analogical reasoning. but rather that which is pertinent to giving judgements in court (though an absolute expert in Islamic legal reasoning (mujtahid mutlaq) such as Abu Hanifa, Malik, Shafi’i, or Ahmad, is obliged to know what relates to every subject matter in Sacred Law). He must know the reliability ratings of hadith narrators in strength and weakness. When two primary texts seem to contend, he gives precedence to:
1. those of particular applicability (khass) over those of general applicability (“amm);
2. those that take restrictions (muqayyad) over those that do not (mutlaq);
3. those which unequivocally settle a particular question (nass) over those of merely probabilistic legal significance (zahir);
4. those which are literal (muhkam) over those which are figurative (mutashabih);
5. and those which supersede previous rulings, those with a contiguous channel of transmission, and those with a well-authenticated channel of transmission, over their respective opposites.
He must also have knowledge of the Arabic language. its lexicon. grammar. word morphology .. and rhetoric.
He must likewise know the positions of the scholars of Sacred Law regarding their consensus and differences, and not contradict their consensus (which is unlawful) with his own reasoning.
If no one possesses the above-mentioned qualifications, and a strong ruler appoints an unfit Muslim to the bench. such as someone who is immoral, or who (is incapable of independent legal reasoning (ijtihad) and) merely follows other qualified scholars (taqlid), or a child, or a woman, then the appointee’s decisions are implemented because of necessity, so as not to vitiate people’s concerns and interests (and this is what exists in our day, when the conditions for an Islamic judge are seldom met with»;
e) sound hearing;
f) sound eyesight;
g) and the faculty of speech.
(The author did not mention the necessary condition of being a Muslim, evidently feeling that uprightness ((c) above) was sufficient to imply it.)
It is recommended that the judge be stern without harshness, and flexible without weakness (so the litigants do not despise or disdain him, for otherwise, people entitled to rights would not be able to obtain them).
If the judge needs to appoint another person to handle a part of his caseload because it is too heavy for him, then he may assign someone to deal with the extra cases if the person himself is qualified to be a judge. If the judge does not need to, he may not appoint such a person without special permission (from the regional ruler).
If the judge needs a court secretary, he must be Muslim, upright, sane, and learned (meaning familiar with writing up plaintiffs’ cases, recording what is done in each case and the judge’s decisions, and must be able to distinguish between writing it correctly and incorrectly. The above four conditions are obligatory, there only remaining to be mentioned that the secretary must be male and free).
The judge should not have a doorkeeper (if there is no crowd), though if he needs one, the doorkeeper must be sane, reliable, and unbribable.
When not in the area of his jurisdiction, the judge may not give legal decisions, appoint others, or hear evidence (or claims).
He may not accept gifts except from someone who customarily gave him gifts before he became judge, who is not a plaintiff, and whose gifts are not more lavish than those given before the judge’s appointment. (The same is true for entertaining the judge as a guest, as well as lending articles to him which are of rentable value, such as lending him lodgings.) It is better for a judge not to accept any gifts. (And whenever gifts are not lawful to accept, he does not legally own them but must return them.)
A judge may not decide cases involving his son (son’s son, and on down) or his father (father’s father, and on up, or cases involving his partner in a shared enterprise).
He should not decide cases when angry, hungry, thirsty, overwrought, exultant, ill, tired, flatulent, annoyed, or when the weather is irritatingly hot or cold (it being offensive for a judge to decide a case in any state that affects his temperament for the worse), though if he does, his decision is implemented.
The judge should not sit in a mosque to decide cases (lest voices be raised therein, and because he might need to bring in the insane, children, a woman in her period, or non-Muslims; for which reasons sitting in a mosque to decide cases is offensive). But if his sitting in the mosque (in prayer, spiritual retreat (i’tikaf), or awaiting group prayer) happens to coincide with the coming of two litigants, then he may judge between them (without it being offensive).
The judge should sit with tranquility and gravity (as it creates greater respect for him and makes it likelier that he will be obeyed). He should have witnesses present and scholars of jurisprudence to consult with on points of difficulty. If a case is not clear, he should postpone giving a decision on it. He may not merely imitate another’s decision on a case (but must be capable of expert legal reasoning (ijtibad) himself).
The judge handles the cases on a first come-first-served basis, one case per turn. If two arrive at the same time, they draw lots to see whose case will be heard first.
The judge (obligatorily) treats two litigants impartially, seating both in places of equal honor. attending to each, and so forth, unless one is a non-Muslim, in which case he gives the Muslim a better seat. He may not treat either litigant rudely, nor prompt one (as to how to state his case).
The judge may intercede with one of them on behalf of the other (meaning to ask the two parties to settle their differences, which is what a judge’s “intercession” is. It does not take place until after the truth has been established, which obviates his unfairly inclining to either one) and he may also pay one litigant what the other owes him.
(When assigned to a new jurisdiction,) the judge first looks into the cases of the imprisoned, then orphans, and then of lost and found items.
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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