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. God says:
“We have sent Messengers with clear proofs, and sent down with them the Scripture and the Balance that mankind can establish justice…” (Quran 57:25)
Islam – the religion that God wants for mankind from the time that He sent Muhammad, may the mercy and blessings of God 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 God. It is the religion that comes to remove people from oppression and iniquity and bring them to the highest degree of justice and freedom.
God’s Messenger was the greatest of judges. He used to act in the capacity of judge in the city of Medina, which was the first Islamic state. He used to appoint people to be judges in other cities. Among these were `Utâb b. Asyad who was sent to Mecca, Ali b. Abu Talib and Muadh 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-Khattaab, 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 Abu Yusuf, the student of the great jurist Abu Haneefah (may God 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 Iyâs b. Muawiyah, Shurayh b. Abdallah, al-`Izz b. `Abd al-Salam 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.
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 God (peace be upon them) acted as judges. God says:
“And remember David and Solomon, when they gave judgment concerning the field when people’s 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.” (Quran 21:78-79)
God also says:
“O David, verily we have placed you as a successor on Earth, so judge between people in truth, and do not follow your desires for it will mislead you from the path of God. Verily, those who stray from the path of God have a severe punishment because they forgot the day of reckoning.” (Quran 38:26)
Prophet Muhammad, who came with the final and eternal Message, was ordered by God to pass judgment in disputes just as he was ordered to spread the word of God and call people to Islam. This is mentioned in the Quran in a number of places. God says, for instance:
“So judge (O Muhammad) between them by what God has revealed and do not follow their vain desires, but beware of them lest they turn you away from some of what God has sent down to you.” (Quran 5:49)
God also says:
“…And if you judge (O Muhammad), judge between them with justice. Verily, God loves those who act justly.” (Quran 5:42)
And He says:
“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.” (Quran 4:65)
The Sunnah also provides for the legal basis of the Islamic judicial system. It is related by Amr b. al-Aas that the Prophet said:
“If a judge gives a judgment using his best judgment and is correct, then he receives a double reward (from God). If he uses his best judgment but makes a mistake, then he receives a single reward.” (Ahmed)
God’s Messenger said:
“You should not wish to be like other people, except in two cases: a man who God has given wealth and he spends it on Truth and another who God has granted wisdom and he gives verdicts on its basis and teaches others.” (Saheeh Al-Bukhari, Saheeh Muslim)
Many scholars have related to us that there is consensus among Muslims on the legal status of the judicial system in Islam. Ibn Qudamah says:
“The Muslims are unanimously agreed that a judicial system must be established for the people.”
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...” (Quran 4:135)
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. Imam Ahmad, one of the greatest and most well-known scholars of Islam 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 people’s rights, and keeping oppressive behavior in check. None of these duties can be performed without the appointment of a judiciary.
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.
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 God and preventing what God has prohibited. This is a collective responsibility of Muslim society. This requires that God’s commands and prohibitions be applied as the standards of truth and justice. Whatever God has commanded is truth and justice and whatever He has forbidden is falsehood and oppression. Consequently, prohibiting what God has forbidden is truth and justice.
There are numerous verses in the Quran that command justice and forbid oppression. God says:
“Verily, God enjoins justice, doing good, and spending on one’s relatives, and forbids licentious deeds, wrongdoing, and transgression. He admonishes you, so perhaps you might take heed.” (Quran 16:90)
And God says:
“…And let not the hatred of others dissuade you from justice. Be just, that is nearer to piety; and fear God. Verily, God is well acquainted with what you do.” (Quran 5:8)
And God says:
“…And if you judge (O Muhammad), judge between them with justice. Verily, God loves those who act justly.” (Quran 5:42)
And God says:
“…And whoever does not judge by what God has revealed, they are the disbelievers.” (Quran 5:44)
In the hadîth, God’s Messenger relates:
“God says: ‘O My slaves, I have prohibited oppression upon myself and made it prohibited between you, so do not oppress one another.” (Saheeh Muslim)
These are but a few of the sacred texts that show the obligatory nature of judging with justice and with what God 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 God’s Law. There is no obedience due to the government if it requires disobedience to God’s 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 God. 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[1] Umar b. Abdulaziz 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.”
Saeed 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-Ashath 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-Ashath. Shurayh then said: “Stand up and take the defendant’s seat and address the other.”
Al-Ashath 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.”
Abu Yusuf – one of history’s 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. Abu Yusuf 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-Mahdi purchased it for me but I find no contract for it.”
Abu Yusuf bade the Caliph thrice to testify under oath, but the Caliph would not do so. At this point, Abu Yusuf ruled in favor of the plaintiff.
The Caliph, Abu Jafar al-Mansoor, once wrote to Siwar b. Abdullah, 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.”
Siwar 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.”
Abo Mansoor wrote back: “By God, besides Whom there is no other god, you will not take it from the merchant without right.” When the judge’s letter had reached him, he had said: “I have filled it, by God, 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.
