Two in Hell, One in Heaven:
Assuming the position of judge (qadi) was one that many early Muslim jurists would actively avoid. In one Prophetic tradition, Prophet Muhammad is reported to have said:
“Judges are three – two in hell, one in heaven: A man who judges by other than truth knowingly then he is in hell, A judge who is ignorant so he destroys people’s rights then he is in hell, and a judge who rules according to truth then he is in heaven.” [Tirmidhi #1322]
Because of this and other sacred texts like it, an entire genre of work titled “Judicial Protocol” developed to explain how judges are appointed, how they make decisions, and how this topic relates to other forms of dispute resolution. In a previous article, I discussed a specific type of case, that of defamation. To understand better how cases are resolved, and eventually how they are resolved in non-Islamic courts or through alternative dispute resolution (like arbitration) I’ve decided to write a series of articles to expand on the ideas alluded to in that first article. This is not meant to be an exhaustive survey of all the ideas presented here. My intention is to give the reader enough to pique their interest and show some of the complexity associated with this topic.
Hierarchy and Authority to Resolve Disputes
It is important to understand the hierarchy of authority and power to resolve disputes. Courts are at the top of this hierarchy. They are the absolute highest authority in deciding matters under Islamic law. Appointed by the government for this purpose, their rulings apply to all citizens, even those in positions of power. Subordinate to the courts in power are Arbitration tribunals, who have no power to compel that a ruling they issue be followed; instead they must rely on the courts for that.
Additionally, the subject-matter they can issue decisions on is limited in scope. Reconciliation, the agreement of two people to settle a matter among themselves, is even more limited as we will see. We’ll cover more on that later, and include some notes about Fatwa as well, but for now let’s talk about how a judge’s decisions are made. I’ve tried here to reference the concepts outlined here, and with time will improve upon this write-up.
Courts and Court Authority
The Qāḍī’s basic function is to resolve disputes and allocate rights to litigants.” Unlike the Faqīh or the Muftī, 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 authority who appointed him to specific cases that effect the lives of the parties to the case.
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). Gender was an issue debated as well, with most early jurists making it a condition, while the like 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 the opinion of this author, the arguments of those in favor of female judges are perhaps stronger and more universal.
If there was one qualification that all jurists spent the most time discussing, it 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. Any lapses in this area were possibly impeachable offenses and may initiate review and retrial of a judge’s cases. Lastly, a prospective judge must possess certain intellectual qualifications, such as intelligence and sufficient juristic acumen (some stipulating he reach the level of Ijtihād). I have written in more detail about these qualifications elsewhere. [academia.edu]
Additionally, a judge must possess certain vocational skills in order to be successful and maintain the high moral probity and virtue stipulated before. He must comprehend the substantive rulings related to the case at hand. This relates to the intellectual qualifications mentioned previously. Knowledge of Sacred texts, substantive rulings and maxims derived from them, and case law on the topic are all a must in order to issue a decision properly. Likewise, the judge must comprehend legal procedure. Some have said that this skill is the key to just and equitable rulings and is more important than detailed knowledge of the substantive rulings. Sa’id b. al-Musayyib (d.93), student of Ibn ‘Abbas, is reported to have said “Whoever can distinguish the plaintiff from the defendant has understood proper adjudication.” [al-Qarafi, 7/289] Procedure is important simply because without it the process of pursuing one’s rights would be chaotic.
Another skill essential to proficient and just legal proceedings is the Judge’s ability to form his opinion properly based on evidence, rulings, and precedents is of utmost importance. Yet merely understanding legal rulings and rules doesn’t make one a judge. He must be able to comprehend the case before him and its facts, separate those pertinent to issue a ruling from those that are not, and relate those facts back to his ruling. Lastly, the ability to communicate his ruling effectively and draft an opinion that lays all of this out for the parties involved is a must. [Ibn Khunayn, 20] Think of these skills like a chain, when one link is missing nothing will connect.
The appointment of a Qāḍī is considered to be a collective duty on the populace of any particular area, with one caveat: the presence of a legitimate and sovereign Muslim ruler (Imam or Sultan). The right to appoint and dismiss judges is his sole duty.[al-Hawi 7/16] In the absence of a sovereign Muslim ruler, the populace has no choice but to use the courts available to them for disputes, to organize their affairs and self-govern, or to arbitrate those disputes among themselves. [al-Juwaini, 459, 467] If any group of people could appoint a judge for any and all personal disputes, we’d find judges on every street corner all ready to uphold our personal truths. This would lead to chaos and the further breakdown of civic order and public welfare, which are the mainstays of all worldly blessings. [al-Juwaini, 311]
What sort of Issues can a Judge Decide?
The Prophetic tradition states “Evidence is the onus of the plaintiff, and an oath is due from the defendant.” In the classic period most any complaint or case could be brought to the Qāḍī’s court. The traditional Islamic court is for the most part adversarial, while other administrative courts were inquisitorial. The burden of discovery in classical works is the responsibility of both parties, yet falls primarily on the plaintiff as they are the party initiating a claim based on the hadith above.
For a judge to adjudicate, there must be a reason that merits the case be heard. [Ibn Humam 7/143]
A plaintiff may have reason to claim a specific right in court. This right may be a personal claim, such as property damage, personal injury, or the violation of a contract. A second type of claim, not associated solely with a personal right but are connected to public order and welfare, are those that mandate a Ḥadd punishment or are claims solely for the public welfare, such claims of general malpractice against state officials. Lastly, there are personal claims that are not rights in and of themselves, but confer rights when decided. An example of this is a claim to inheritance. After a probate court discovers cause, it can confer a right to inheritance which prior to discovery and ruling did not exist.
Components of a Complaint
As alluded to in the previous article the nature of a complaint, the claims made, and who they are made to can make or break a case. If a person takes their grievances to the wrong forum, not only can this result in their rights not being secured, but can empower the guilty to escape justice by making counter-claims publicly. This complicates the ability to hear such as case, as it only adds to the amount of information that a judge must sift through in order to ascertain the facts and rule on it.
So what makes up a case under Islamic law? Medieval jurists defined a case in various ways. For example, Hanafi scholars presented a very minimalist definition. They said “A complaint is a statement accepted from a person present in court with the purpose of securing his or who he represents right.” [Badai’ 6/222] Other medieval jurists did not present as clear of a definition of a case as the previous one, but in general there are several components that must be present for the case to be valid. There must be a plaintiff, a defendant, a cause for action, and a demand for relief. Some add that a judge or court be specified, essentially meaning that jurisdiction should be proven for the case to be heard. [alArjani, p.32]
In order for a complaint to be valid in court, there are certain conditions that must be met. The claims made in the complaint must be ascertainable, specific, and enforceable after answered by the defendant, replied to by the plaintiff, and evidenced at trial. [Samarqandi, 3/181, Ibn Farhoun 1/108] There are many other details related to the nature of a complaint presented at court that I’ve left out here for brevity.
What is Evidence and How is it Identified?
If a person claims that X happened, they would be tasked presenting the testimony of an acceptable witness or some other form of evidence that would support their case. Evidence may be direct, corroborating, or circumstantial. In order for evidence (Arabic: bayyina) to be admissible, it must be related to one of the three causes mentioned in “Judicable issues” above. The process of discovery in Islamic courts, where evidence is presented to support the case, begins after the initial complaint in court. The judge will ascertain who the plaintiffs and defendants are, the nature of the claims involved, then request evidence be presented to the court. Although I mentioned that traditional Islamic courts are mostly adversarial in nature, acting as referees between the plaintiff and defendant, they are at times inquisitorial as well. Judges will actively investigate the facts of the case, question plaintiffs, defendant, and witnesses, as well as probe the evidence presented. In that sense, they are more of a hybrid of both types of systems.
The mainstay of direct evidence, as detailed by most scholars of the canonical Madhāhib, is testimony (Shahāda). This is followed by confession (Iqrār), then an oath (Yamīn) taken from one of the two parties. So, for example, a man’s shop was robbed and he produced witnesses that could identify the robbers, this would be admissible and used by the judge to rule against the defendant, if the defendant is unable to mount a convincing defense absolving himself from the accusation or discrediting the witness’ testimony. If the defendant confessed, this would obviously be admissible. If the plaintiff makes a claim but is unable to produce evidence of any type, then the defendant is requested to go on record denying those claims and the case is dismissed. If the defendant refuses to go under oath, then the judge may require the plaintiff to take an oath to the veracity of their claims, and may judge in favor of them in that case or demanding other forms of indirect and corroborating evidence to come to a conclusion. [alArjani, 49]
The admissibility of corroborating evidence is a topic of great discussion amongst jurists. Forensic evidence, DNA tests, expert witness, and similar are all examples of this. If a plaintiff claimed their shop was robbed yet could not produce any direct witnesses to the act, they could still present camera footage, call an expert witness to determine the identity of the people in the footage, or present DNA evidence collected from the scene. This form of evidence plays a prominent role in delineating the meanings and circumstances disputed between the two parties.
While the majority of early scholars limited their discussions of evidence to either direct evidence or corroborating evidence, the 8th century Ḥanbali jurist Ibn al-Qayyim asserted that evidence (al-bayyina) is a wide-ranging term used for anything which uncovers and highlights an underlying right. This is not limited to one, two, or four witnesses, nor to the other types of evidence such as confessions and oaths mentioned previously. Instead, it includes circumstantial evidence (qarina) as well. In our last example of a shop being robbed, a timeline of events could be created to present the plausibility of the plaintiff’s claims.
Ibn al-Qayyim states that to not admit circumstantial evidence would be a travesty of justice. He also reiterates that to rely solely on it would be cause for corruption and transgression. Modern Islamic courts all seem to gravitate towards the broader opinion of Ibn al-Qayyim, allowing circumstantial evidence as long as the inference created by it is not too weak to help decide the case. [al-Turuq al-Hukmiyyah]
Conflicts of Interest
A judge may use his personal knowledge of a case if and when this knowledge is obtained through court proceedings. [Ibn Rushd, 2/470] Personal opinions and information obtained outside of the judicial procedure are considered inadmissible and should be disregarded by the judge, otherwise judges must recuse themselves. If the judge has a personal connection to one of the parties to the case, such as a previous business dealing, friendship, or similar they too must also recuse themselves, as this is a conflict of interest and poses a huge ethical dilemma with regards to the judge’s impartiality and fairness. [Ibn Farhoun 2/245, Ibn Abd’l-Salam 1/37, al-Buhuti 4/197, Illish 4/198]
Why is This Stuff Important?
Why is it important to understand the conditions, qualifications, and skills of a judge under Islamic law? Why study the components of a valid complaint brought to court or the procedure that should be followed? This may not be relevant to the average everyday person. It is important however for community leaders to be familiar with because all the information here relates directly to the qualifications, skills, and procedures for arbitration, mediation, and reconciliation.
Next: Arbitration and Arbitrability