The Kavanaugh Hearings, Morality, and the Appointment of Judges under Islamic Law

So with all this appalling #KavanaghHearing news, I figured I’d comment on the inherent virtue jurisprudence of Islamic law in it’s appointment and regulation of judicial appointees.

So first, what does a judge do? A judge’s (Arabic: Qāḍī’) basic function is to resolve disputes and allocate rights to litigants. The Qāḍī retains not only the power to interpret and express what the law is, but the authority to order it be applied by the executive.

In order to be appointed, the candidate for a judicial position had to possess be a free Muslim of legal capacity, be of sound mind, and possess high moral probity (ʿAdāla). Remember these are rules written in a not too distant past when things were different, so they stipulated he be free – i.e. not a slave – else he be bound to someone who has control over him.
If a person were in debt or in the long term employ of another, the same applied.

Gender was an issue debated as well, with most early jurists making it a condition that a judge be a male, while the likes of Abu Hanifa, al-Tabari, and Ibn Hazm disagreed. These debates rely heavily on medieval concepts of women’s access to education as well as the population’s overall literacy at that time. In my opinion, the arguments of those in favor of female judges are perhaps stronger and more universal.

One qualification that all jurists spent the most time discussing was a judge’s moral probity. Known in Arabic as ʿAdāla, it is a condition of general ethical conduct and virtue both before and after appointment. In fact I know of no time restriction for this. The person nominated for appointment should have a stellar record. There is no “boys will be boys” excuse for being a crappy person in the past.

The basis of stipulating moral probity is the verse “Oh you who believe, when a sinner comes to you with news, then clarify it.”
﴿ يَا أَيُّهَا الَّذِينَ آمَنُوا إِنْ جَاءَكُمْ فَاسِقٌ بِنَبَإٍ فَتَبَيَّنُوا ﴾ [الحجرات: 6].
This verse indicates an a priori necessity to investigate claims surrounding morality and upright character.

Moral probity was generally defined as: a character intrinsic to one’s self that obliges one to maintain mindfulness of God, abstain from major sin and minor sin, and avoid morally suspect behavior even if permissible. (Tabsira 1/259) In fact, the condition that a judge not be appointed unless he is known for this level of high moral probity is one there is consensus of all Muslim scholars.

What this means is that when you have more than one possible candidate of equal qualification, the ones whose probity is suspect are disqualified. The only nuance to this is when an immoral person is appointed and there is no way to remove them, do their rulings maintain legal weight and the power of law? The majority of scholars said no, because they weren’t issued with the proper pre-requisites
A minority allowed the immoral man to be a judge, but only the LEAST immoral one of the bunch, so that there is at least someone with higher probity than the others ending disputes

So back to moral probity as “a character intrinsic to one’s self that obliges one to maintain mindfulness of God, abstain from major sin and minor sin, and avoid morally suspect behavior even if permissible.” What are these three things: major sins, minor sins, & morally suspect actions? Let’s talk about it a bit.

Obviously the most major sin of all in Islam is to associate others alongside God in worship (shirk). The assumption however is that the judge is already a Muslim, but were he known to commit such an act after Islam he would be disqualified.

Additionally, the major sins of Islam have a rule: Any act for which there is a prescribed punishment for in this life, or a divine retribution for in the hereafter. So for example, adultery and fornication are sins that fulfill both. They are punished by stoning or flogging in this life, and in Hell there are specific punishments such as roasting in a pit at the lowest part of hell.

Another major sin in Islam is consumption of intoxicants. Those that are caught for public drunkenness are flogged publicly, and in the next life they’ll drink from a river of pus. Any form of sexual assault that results in penetration would be a major sin that results in stoning, lashing, or both. Sexual assault that does not include penetration is one of those sins that is left to the Court’s discretion to punish as it sees fit. If public enough of a crime, the judge can order the same punishment as fornication or adultery to be implemented as a deterrent for other people that may engage in the same thing.

It should be mentioned that one definition of major sins is that it is every act that is followed by mention of being cursed by God, earning his anger, or deserving hell. (Majmu al-Fatawa 11/650) That said, it’s important to recall this verse here:
(إِنَّ الَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ الْغَافِلَاتِ الْمُؤْمِنَاتِ لُعِنُوا فِي الدُّنْيَا وَالْآخِرَةِ وَلَهُمْ عَذَابٌ عَظِيمٌ) [Surat An-Nur 23] “Indeed those that accuse chaste, heedless, believing women are cursed in this life and the next, and they will have a painful punishment.”

A priori are those that accost women sexually, as acts against them are worse than statements against them, and usually result from the lack of value men place on women.

Minor sins are those things that don’t have a specific punishment for in this life or the hereafter, but are nevertheless prohibited.
For example the Hadith “The eye fornicates, and it’s fornication is looking…” (Bukhari/Muslim)

Lastly are those things that are morally suspect, even though they may be permitted. For example, one may dine out with colleagues from work, and unbeknownst to her a co-worker orders an alcoholic beverage. While it is permissible to dine in a restaurant, it may become morally suspect to remain there when alcoholic beverages are being served in proximity, even if it’s not at the same table.  This is a very elastic category and one that is based on custom more than text, but nonetheless draws questions about one’s own actions simply due to the environment.

We can see from this quick review of judicial appointment qualifications, that many up for appointment would simply not pass muster, and this should encourage all of us to question how and why things that fly in the face of morality have become so normalized so as to be swept under the rug when appointing someone to a position as sensitive as that of a judge.


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