There are a number of noble Qur'anic verses which deal comprehensively with
the `system of the judiciary', and which we must examine closely. In the
following sections, these verses will be studied and the results sought for
derived from them:
1. The need for the judiciary (al-qada'), which is indispensable for the life
of human society.
2. The criterion for judiciary.
3. The rules of conduct for the judge, his qualities, rights, and particular
duties.
4. The duty of the litigants in observing the criteria specified by none
other than revelation and in refraining from opposition to and questioning what
has originated from the Source of the judiciary.
5. Matters concerning judiciary, such as testimony and the duties of the
witness.
We will discuss these important issues, and study the Qur'anic view of them.
1. The Need for Judiciary:
Man is a social creature. He is unable to dissociate himself completely from
others and live in isolation and seclusion. He is also unable to live in
complete harmony with others, since each person has his own particular ideas,
qualities, and conduct. to which his nature inclines, which characterize him
without anyone else sharing them either partly or wholly.
If man is unable to live alone and remain in absolute solitariness, nor able to
live in complete harmony with others, then differences will undoubtedly appear
between individuals and groups. There will be strife between them and disputes
will take place about particular interests, with each one having an eye out for
his own interests.
If there were no general rules to which people could take recourse, and no
criteria by which truth could be distinguished from falsehood, social order
would be disrupted, human society would break down, and public affairs would be
in disarray. The noble Qur'anic verses testify to this. As regards the first
point, i.e., man's nature as a social creature, it is indicated by the statement
of God, the Exalted: O mankind, We have created you male and female, and
appointed you races and tribes, that you may know one another. (49:13)
If man was not social by nature and individuals were able to live by themselves,
there would be no need of races and tribes, since they would not require the
mutual acquaintance (al-ta`aruf) which depends on social ties.
Regarding the second point, i.e., the inevitability of conflict, God, the
Exalted, says:
Had thy Lord willed, He would have made mankind one nation; but they continue in
their differences, excepting those on whom Thy Lord has mercy. (11:118-119)
God's responsibility is to show the way; and some do swerve from it. If He
willed, He would have guided you all together. (16:9)
It is not correct to make them `one nation', because that compulsion would be
inconsistent with human responsibility and would also be inconsistent with
voluntary growth and development. In fact, it would be inconsistent with wisdom
as well, since differences on the whole are beneficial, sacred and commendable.
What is reprehensible is the difference that arises even after distinguishing of
rectitude from error and the clarification of truth. These two types of
differences have been indicated by God, the Exalted:
The people were one nation; then God sent forth the prophets, good tidings to
bear and warning, and He sent down with them the Book with the truth, that He
might decide between the people touching their differences; and only those who
had been given it were at variance upon it after the clear signs had come to
them, being insolent one to another; then God guided those who believed to the
truth, touching which they were at variance, by His leave; and God guides
whomsoever He will to a straight path. (2:213)
It is inferred from the first part of the verse that primitive man was simple in
his beliefs, with a sound natural disposition (fitrah) and far from deviation
and desire (haws), even though he would differ from others of his kind on
certain matters. Differences in matters such as these were inevitable in his
life's course since man had been created for perfection, and these formed part
of - the stages of his growth.
In order to settle these differences and elucidate the truth during conflict,
Allah, the Exalted, revealed the Book accompanied by the truth, which moved
along with it. On the elucidation and clarification of the truth, the people
were divided into two groups-some of them believed and followed what the Book
had brought, and others did not believe through insolence and hostility. This is
the disagreement concerning faith and conviction, and it is a reprehensible
disagreement. Regarding the third point the necessity of determining the general
rule to resolve disagreements-that is indicated by the statement of God, the
Exalted:
Nay, but they cried lies to the truth when it came to them, and so they are in a
matter perplexing. (50:5)
Almighty censures them for the disorder of their state. They have fallen into
confusion by their denial of the truth, and He enjoins them to resort to the
truth, avoid creating confusion, and maintain the correct order.
Islam has been concerned with removing these differences through training,
educating, discipline, and purification. It has urged adherence to `the strong
rope' of Allah and abstention from conflict which would result in social
discord. It has brought about brotherhood '- among the believers, and made them
"merciful one to another" even though they are "hard against the unbelievers"
(48:29). It has described the believers as being "a building well-compacted"
(61:4) in confrontation with untruth, and as "friends one of the other; they bid
to honour and forbid dishonour" (9:71).
It has called them to "enter the peace, all of you" (2:208), and not to be
separated from the circle of Islam even by an inch, since "one isolated from the
community is, for Satan, as the isolated sheep is for the wolf." It has praised
those who ask the forgiveness of Allah, the Exalted, for themselves and their
brothers who had preceded them in the faith, and told them to call on God, the
Exalted, not to put into their hearts "any rancour towards those who believe"
(59:10). Apart from these, there are other lofty qualities necessary for
removing differences and for preventing their development in the hearts, or
their becoming apparent in their behaviour, since people have been taught that
Allah knows what they hide in themselves and what they disclose through their
conduct.
In order to preserve the social order and safeguard social unity, disagreements
are to be removed by referring them to the judgement of Allah and His Messenger,
by appointing Him as arbitrator in their disputes, and by not turning away from
Him to another, since His judgement is the sole legal recourse to settle
disputes and solve differences, and no one has a choice in what Allah and His
Messenger have ruled. The judiciary is the guarantee for applying a just system
of regulations and preventing disarray in social affairs. It requires the
establishment of everything in its proper place, the returning of every right
to its owner, and everyone obtaining his due.
That is why the "proposition" is termed "qadiyyah"; because as along as the
predicate and its judgement as regards the subject has not been ascertained and
the subject's judgement has not been determined in relation to the predicate,
either negatively or positively, one is hesitant and uncertain until rightness
is distinguished from error and the sound from the unsound. When the intellect
judges a particular matter and gives a specific verdict, then the peace of mind
is achieved and doubts end. Thereat the matter with regard to its conceived
terms is described as qadiyyah, and the mental form with regard to its conceived
terms is called judgement (tasdiq).
2. The Criterion for the Judiciary:
It has been explained in the previous section that judiciary is necessary for
safeguarding social system and to curb unruly behaviour. In this section we will
discuss its criterion. It may appear at first that the human intellect can
independently discover these rules and that its range covers what the thinking
man attains through his judgement without resorting to heavenly scriptures and,
in fact, without needing them at all. However, a deep study of the evidence for
the necessity of judiciary shows that the human intellect is insufficient for it
and is incapable of determining the criterion for judiciary and defining its
scope.
This is because the views of one person-as has been mentioned are not all in
agreement with those of other people. Each person considers his ideas to be
right and regards other people's ideas as misconceptions. He imagines that hg
views are appropriate and would benefit mankind, while the ideas of others are
inadequate and harmful. Thus ensue the intellectual arguments and the academic
debates and discussions.
In addition to this, everyone is naturally disposed to put one's interests and
those of one's group and family above those of others, regarding them to be
better entitled than others. This would have great consequences for the method
of laying down and applying the law.
The following conclusions can be derived from the above discussion.
The need to remove disagreements and solve disputes makes the existence of a
judiciary necessary. The human intellect is not adequate to provide felicity to
human society on its own.
On the contrary, it is the light that illuminates the way-the way indicated by
divine revelation-and guides those who follow it to the desired goal. If the
human mind-because of its intellectual inadequacy and its being infested by
questionable motives-is inadequate in determining the criterion for judiciary,
then an inquiry should be made into what the perfect standard for judgement
between people should be. This may be done by looking at two points:
Firstly, the inability of human thought and its failure to offer the judicial
standard. Secondly, the genius of divine revelation and its competence in
determining the judicial system, since it has been derived from the Unseen and
transcends the natural laws, as we will see, God willing. The first point is
indicated by the statement of God; the Exalted: ...Messengers bearing good
tidings, and warning, so that mankind might have no argument against God, after
the Messengers; God is All-Mighty, All-Wise. (4:165)
This indicates that the intellect on its own is inadequate for attaining
perfection and guidance to the most correct path. For were it sufficient, the
argument for the adequacy of the intellect and reliance on its guidance would be
justified. If people committed sins and per. formed offences, the argument of
Allah against them would be established (for the intellect which had been given
them had forbidden them from it, so why did they not follow it but go against
it) It would then be right for them to be punished for their sins and evil
deeds. However, the noble Qur'an does not support or sanction punishment before
sending Messengers. God, the Exalted, has said:
We never chastise until We send forth a Messenger. (17:15)
Had we destroyed them with a chastisement aforetime, they would have said, `Our
Lord, why didst Thou not send us a Messenger, so that we might have followed Thy
signs before we were humiliated and degraded?' (20:134)
This proves that it is not God's practice to chastise His creatures before
dispatching Messengers, nor to humiliate, disgrace, and destroy through
punishment a people before sending prophets to them. Were it not so, these
creatures would protest to God that the punishment was carried out before the
proof was completed. The weakness of human thought and the fact that man is not
aware of all beneficial and harmful consequences of his acts, even in matters
closest to him, is pointed out in the statement of God, the Exalted, when
explaining the distribution of inheritance and appointing specific shares to
each heir:
You know not which out of them is nearer in profit to you. (4:11)
When explaining the necessity of belief in revelation and the impermissibility
of turning away from it, God, the Exalted, says:
So when their Messengers brought them the clear signs, they rejoiced in what
knowledge they had, and were encompassed by what they mocked at. (40:83)
This indicates that man's knowledge does not guarantee him happiness, otherwise
it would not be wrong on his part to be content with it. However, it is not so
because he is incapable of attaining through it what he needs. Thus it is
reprehensible for man to confine himself to his own knowledge and turn away from
what the prophets have brought. In the following statement, God, the Exalted,
indicates that man is unable to establish justice and determine the rules of a
just judiciary with the sole means of the intellect that has been given him:
Indeed we sent Our Messengers with the clear signs, and We sent down with them
the Book and the Balance so that men might uphold justice. And We sent down
iron, wherein is great might, and many uses for men, and so that God might know
who helps Him, and His Messengers, in the Unseen. Surely God is All-Strong,
All-Mighty. (57:25)
This indicates that the aim of sending the Messengers with clear signs and
sending the scriptures with them was that the people should uphold justice. If
man were able to achieve justice through his intellect and without the need for
revelation, there would have been no need for it.
The reason for man's being unable to define the standard for the judiciary is
that there lie before him various worlds and higher and lower levels and degrees
of existence. He moves from one world to another and from one level to another
and he is immortal and imperishable. Since he moves from one abode to another,
he must seek perfection through a power that does not cease or perish, and
which does not harm his world or his Hereafter.
Obviously, determining such a power requires a comprehensive knowledge of the
true nature of man and what makes him ascend to the highest stages or brings him
down to the lowest levels. How does that knowledge compare with the little
knowledge that has been given man, who does not have much understanding of what
will benefit or harm him?
The second point-the capacity of divine revelation in explaining the judicial
system-is indicated by several Qur'anic verses.
Whoso judges not according to what God has sent down-they are the unbelievers.
(5:44)
Whoso judges not according to what God has sent down-they are the evildoers.
(5:45)
Whosoever judges not according to what God has sent down-they are the ungodly.
(5:47)
The difference between unbelief (kufr) and the other contingent evils, as
regards the judiciary, will be explained. Among them is the statement of God,
the Exalted:
Is it the judgement of pagandom then that they are seeking? Yet who is fairer in
judgement than God, for a people having conviction? (5:50)
These verses suggest that judgement is either the judgement of Allah, determined
by revelation, or the judgement of pagandom (jahiliyyah). The latter includes
every judgement and law followed by men, whether it is described as civilized or
not and whether it is accepted or rejected by all people or some of them.
This is because there is nothing after truth except falsehood, and following
that which is not from Allah, the Exalted, necessitates moving away from the
straight path which leads to paradise. There are only two paths, whatever they
may be called, and no third one: the path of Allah, guiding to the straightway,
and the path of the false god (taghut) leading down into the deep abyss of
perdition. Furthermore, God, the Exalted, says:
And whatever you are at variance on, the judgement thereof belongs to God. That
then is God, my Lord; in Him I have put my trust, and to Him I turn penitent.
(42:10)
The verse indicates that the sole recourse for settling differences is judgement
of Allah, and no other, whether these differences concern rights, property or
some other matter. God, the Exalted, says: So judge between them according to
what God has sent down, and do not follow their inclinations to forsake the
truth that has come to thee. (5:48)
This judgement is none other than that which has been revealed by Allah. There
are other verses which restrict the criterion for judiciary to divine
revelation, indicating that everything besides that is ignorance and error, that
anything other than the law (Din) of Allah is not acceptable and that any other
path will not lead to the pleasure of Allah and paradise. On the contrary, it
will lead to Allah's displeasure and "the abode of ruin-Gehenna, wherein they
are roasted; an evil establishment!" (14:28-9), for it is not a path which
guides to the right goal. That is why the Mighty and Sublime has addressed those
who have turned away from the revelation and from the Messenger, saying:
Where then are you going? It is naught but a Reminder unto all beings.
(81:26-27)
The meaning of the term knowledge (`ilm) becomes clear when God the Exalted,
urges that we should not say what we do not know and that we should not deny
what we do not know. He emphasizes that affirmation and denial must be through
knowledge, and confirmation and rejection through understanding. He says of
those who disbelieve without knowledge:
No; but they cried lies to that whereof they comprehended not the knowledge,
and whose interpretation had not yet come to them. (10:39)
Has not the compact of the Book been taken touching them, that they should say
concerning God nothing but the truth? (7:169)
This verse urges one to restrict oneself to speaking only through knowledge and
affirming only through understanding. Similarly, God, the Exalted, also says:
And pursue not that thou hast no knowledge of; the hearing, the sight, the
heart-all of those shall be questioned of (17: 36)
The knowledge mentioned in these and other similar verses refers to that which
relates to happiness and a good life and is in keeping with the revelation of
God, the Exalted, to His Messenger. It is immune from the evils of ignorance,
forgetfulness; and tyranny, and it is rightly the object of hope and the sole
basis for judiciary. As for the intellect, it is independent in matters of
doctrine (usul al-Din) and its guidance makes possible a knowledge of Allah, the
Exalted, and faith in Him.
Similarly, it facilitates a knowledge of the Messenger and the necessity of his
infallibility and freedom from sin and error in delivering the message, and a
knowledge of the doctrine of the Hereafter and man's resurrection with his soul
and body for the Judgement. Despite this, however, the intellect is incapable of
grasping many matters relating to these important principles, and is also
incapable of understanding the benefits and harms latent in actions, laws, and
customs. Therefore, it is always in need of the guidance of revelation in
circumstances that come upon it and in need of its instructions on what it
cannot attain by itself. God, the Exalted, says: ...and to teach you that you
knew not. (2:151)
To conclude, the criterion of the judiciary is the criterion which Allah has
sent down through revelation and laid down for the people in order that they may
establish justice and equity amongst themselves.
3. The Rules of Conduct for the Judge:
It has been made clear that the judiciary is necessary to protect human society
and that its criterion is nothing other than revelation. In this section, we
wish to discuss its external realization and how it can exist in the desirable
form that will afford the application of divine justice derived from revelation.
The administration of justice in human society is possible through a judge who
has knowledge of the divine criterion for judiciary and who believes in it and
acts in conformity with it.
If knowledge, faith, and action did not exist together, the criterion itself
would not have any effect, for it would be like a lamp in the hand of a blind
person who can neither benefit from it himself nor benefit others. He would not
be safe from stumbling and the lamp would either break or be extinguished. Thus,
the practising judge has to be a just scholar (`alim `adil).
Man is controlled by three important faculties from which springs felicity or
misery. They are: his intellect (`aql), through which he grasps matters; his
Desire (shahwah), through which he seeks things and wants them for himself; and
his Anger (ghadab), through which he repels from himself what he dislikes.
Knowledge and justice must inform these three faculties, so that the judge may
not deviate in judgement or depart from the path of truth.
His intellect should be directed towards acquiring and teaching that which has
been brought by the prophets, so that desires (ahwd') do not affect him. There
is no room for personal judgement (ray) in' religion, and whoever rules through
his personal judgement perishes. He who abandons the Book of Allah, the Exalted,
and the Sunnah of His Prophet, has disbelieved; he who relies on himself when
faced with a problem is led astray and he who relies on his judgement in
ambiguous matters is as one who has made himself his own leader (imam).
Justice should inform his Desire, and he should not rule out of a liking for a
particular matter or a specific person. Nor should he rule out of a desire for
wealth, status, or position, or for other reasons springing from vain urges. His
Anger should be temperate, and he should not rule out of hatred for a matter or
hostility to a person, or out of fear of a threat or intimidation, or for any
other reason related to anger, hatred, and the like. The person who is balanced
in his intellect through the teaching of the divine revelation and his faith in
it, and is balanced in his. Desire and Anger-since his love and hatred are in
the way of Allah, the Exalted-such a person is suitable for judgement between
people.
Concerning self-discipline, particularly in relation to judiciary, the Noble
Qur'an deals with the regulation of the three above-mentioned faculties.
Firstly, it refers to the moderation (ta'dil, a derivative of `adl, justice;
ta'dil means informing something with justice) of the intellect through the
scriptural instruction and teachings of the prophets, peace be upon them. He who
does not judge according to what Allah has revealed, is a disbeliever. This has
been mentioned in the previous section, so we will not repeat it.
Secondly, it refers to the ta`dil of love. God. the Exalted, says:
O believers, be you securers of justice, witnesses for God, even though it be
against yourselves, or your parents and kinsmen .... (4:135)
God, the Exalted, has commanded the believer to be a `securer of justice', which
is more important than upholding justice. He has commanded that his testimony
should be for God, even though it may be against himself, his parents, or his
kinsmen, so that his love for himself or his kinsmen does not prevent him from
establishing justice or bearing witness for God. If he was required to make an
admission, against himself; he should do so.
If the establishment of truth calls for testifying against his nearest
relatives, he should not hold back from it. Then his Desire would be just, and
his love would be for God, and he would be attracted towards God. He would not
desire anything that God was not pleased with, nor be tempted by something God
disliked. He would not desire an unjust thing or incline towards vanity, and it
would not be possible to influence or dominate him through his Desire. Thirdly,
it refers to the ta`dil of Anger. As God, the Exalted, says:
O believers, be you securers of justice, witnesses for God. Let not detestation
for a people move you not to be equitable; be equitable-that is nearer to god
fearing. And fear God; surely God is aware of the things you do. (5:8)
In this verse, God, the Exalted, commands the faithful to be `securers of
justice' for God and witnesses for justice. Like the previous verse this one is
also concerned with justice and equity. God, the Exalted, also warns the
believer - lest hatred of a people and enmity to them should lead him to abandon
justice and lest hatred should influence his judgement. The judge must be-guided
by the laws of God, the Exalted, so that his anger is only for the sake of God,
and his hatred for a people must not cause him an unjust ruling. If the faculty
of his `Anger' is regulated in this way, he will have no fear of anyone other
than Allah and it will not be possible to influence him through the arousal of
his `Anger'.
When man attains this kind of control over the self, and is possessed of
knowledge and justice, and his intellectual and behavioural faculties have been
moderated, then it is in order for him to apply himself to adjudication and
occupy the position held by none other than the prophet or his authorized
trustee (wasi) for even if he is neither a prophet nor authorized as a trustee
through a special trusteeship (wisayah) as in the case of the Infallible Imams,
peace be upon them-he is a trustee through a general trusteeship in accordance
with the texts of appointment (nasb).
It is also proper that this judge should pave judgement through his knowledge,
since all dicta are proved through knowledge whereas knowledge is a proof in
itself. So if a just judge has knowledge of the truth, then he should judge
according to his knowledge, so as to comply with the verses which command ruling
with justice.
In fact, if the evidence produced is contrary to his knowledge or the denier
takes an oath asserting something contrary to his knowledge, he should refrain
from judgement or refer the case, for example, to another judge. It is not
permissible for him to rule contrary to his knowledge, even if the evidence or
the oath is acceptable.
It is not right that his judgement should be revoked or refuted, since this
would be like refuting the Infallible Imam, which in turn would be similar to
refuting God, the Exalted. That would actually amount to unbelief and
practically to polytheism (shirk), though it may not involve creedal unbelief,
because creedal unbelief concerns the outright denial of one of the fundamental
doctrines of religion.
One of the most important rules of conduct for the judge is to be on guard
against bribery when passing judgement, because that amounts to unlawful gain,
unfaithful conduct and transgression and has been forbidden by the noble Qur'an:
Consume not your goods between you in vanity; neither proffer it to the judges,
that you may sinfully consume a portion of other men's goods, and that
wittingly. (2:188)
The Qur'an has forbidden the giving of money to judges in the hope of extracting
an unjust judgement from them. The term idla' (proffering) means sending a
bucket down into the well to bring out water from its depths. It should be noted
that the use of this word here means that bribery is like a bucket sent down
into the bosom of the judge to extract injustice and wrong from his wicked
heart. The inward must be pure and the heart unblemished, so that it does not
incline towards wealth and is not influenced by coercion. The Qur'an has
forbidden these two qualities in the following verse:
So fear not men, but fear you Me; and sell not My signs for a little price.
(5:44)
The first part of the verse is a prohibition against misplaced fear, as a
regulation of the faculty of Anger, and the second is a prohibition against
misplaced attraction, as a regulation of the faculty of Desire, along with the
suggestion that the whole world is of little worth. If the unjust judge were to
take the whole world for making a wrong judgement, he would have sold the
judgement of Allah for a `little price', since what is transitory is of little
value however much it may appear to be.
The bribery that has been forbidden is not only of the pecuniary kind. On the
contary, it also includes advantages and benefits and may be a particular act
performed by the briber, or words of praise, or a display of his respect and
reverence for the judge. All these are forbidden, for the term `bribe' is
applicable to them and the, rule concerning it applies to them. [1]
In the `Rules of Conduct for Litigants' we will mention that giving and
receiving bribe are both unlawful.
It is apparent from what has been previously mentioned that it is necessary for
the judge to be on guard against becoming an advocate for the treacherous
person, whether it is by misplaced inclination or repulsion. God, the Exalted,
says:
Surely We have sent down to thee the Book with the truth, so that thou mayest
judge between the people by that God has shown thee. So be not an advocate for
the traitors. (4:105)
The judge has been forbidden to be an advocate for the traitor and defend him,
for the traitor only deceives himself, and so is not liked by Allah, the
Exalted. The judge must be on his guard against inclining towards him,
defending him, driving away the oppressed person, and standing by the oppressor.
Conclusion
The aim of the judiciary is that the judge should possess the greatest
impartiality, emanating through wisdom in the intellectual faculty, through
generosity and integrity in the faculty of Desire, and through courage in the
faculty of Anger, so that the judiciary becomes free from the pollution of
injustice, vanity, and falsehood, and achieves unequalled good. One of the
rules of judiciary is that the judge should not hasten with judgement before
complete investigation and questioning of the litigants. This is indicated by
the statement of God, the Exalted:
Behold, this my brother has ninety-nine ewes, and I have one ewe. Yet he says,
"Give her into my charge"; and he has overcome me in the argument.' Said he,
`Assuredly he has wronged thee in asking for thy ewe in addition to his sheep;
and indeed many partners do injury one against the other, save those who
believe, and do deeds of righteousness-and how few they are!' And David thought
that We had only tried him; therefore he sought forgiveness of his Lord, and he
fell down, bowing, and he repented. (38:23-24)
This verse indicates that it is essential to abandon haste in identifying the
culprit and the offence, even though it is in compliance with the presumption of
the soundness of the case. There is nothing in the verse to indicate criticism
in relation to the conduct of the Prophet David, since this episode is narrated
in the Surat Sad between two commendations of Dawud, peace be upon him. Before
the above-mentioned verse, God, the Exalted, says: And We gave him wisdom and
speech decisive. (38: 26)
After the verses 23-24, God the Exalted says:
David, behold, We have appointed thee a viceroy in the earth; therefore judge
between men justly. (38:26)
Undoubtedly, a prophet whom Allah has given `wisdom and speech decisive' and
whom He has made a viceroy in the earth, commanding him to judge between men
justly, does not hasten in judgement before .decisively completing a proper
investigation. Thus it is certain that what issued from Dawud, peace be upon
him, was only mentioned as a presumption and a hypothesis, i.e. it is an
injustice to presume the veracity of a hypothetical case.
Therefore, the judge must abandon haste in such a decision as well, and must
treat both the litigants equally in looking at them and speaking to them. He
should know that his tongue is between two flames of fire, and that his tongue
is behind his heart; so if it is right for him he should speak, otherwise he
should hold back.
If the judge has not learned to conduct himself in accordance with the
Divine norms, his judgement would have no significance, even if it were correct;
since two matters have to be taker. into account in adjudication; firstly, the
actual good (al-husn al-fi'li), which is that the judgement should be in
accordance with the truth; secondly, the efficient good (al-husn al-fa`ili),
which is that the judgement should issue from a pure soul and a heart with
certain faith, and without fear of anyone's reproach. `The judges are of four
kinds, three of which belong in the fire and one in heaven. [2] This kind is the
one who judges rightly and knows that it is right.
4. The Rules of Conduct for the Litigants:
It has been demonstrated that the criterion for judiciary is nothing other
than Divine revelation, and that the sole authority in settling disputes is
someone learned in the revelation, who believes in it and possesses the
attributes that have made him fit for adjudication. It is essential that he
should be referred to in a dispute, and turning away from him to refer to
someone else is turning from truth to falsehood.
It is `far error' as God, the Exalted, has said:
Hast thou not regarded those who assert that they believe in what has been
sent down to thee and what was sent down before thee, desiring to take their
disputes to tyrants (taghut), yet they had been commanded to disbelieve in
them? But Satan desires to lead them astray into far error (4:60).
It is not for a believer to seek the judgement of one in whom he has been
commanded to disbelieve. It is also not for an oppressor (taghut) to appoint
himself to judgement. Man will not attain the degree of faith until he makes the
Messenger of Allah the judge, choosing him as the arbiter, as Allah, the
Exalted, had chosen him, referring to him in his disputes with others, and then
not finding any objection or reservation in himself against what the Messenger
has ruled, whether it is for or against him, since a believer is one who submits
his affair to Allah, the Exalted: But no, by thy Lord! they will not believe
till they make thee the judge regarding the disagreement between them and then
find in themselves no impediment touching thy verdict, but surrender in full
submission. (4:65)
The noble verse clearly explains the duty of the litigants in a disagreement
or dispute, and urges taking recourse to the Messenger and no other person. It
also urges complete submission to his judgement when an appeal is made to
him--may blessings of Allah on him and his family-for faith is the tranquillity
and peace of the soul, and is not achieved except through the submission of both
the heart and the action of bodily members.
The Noble Qur'an has described as wrongdoing (zulm) the act of one who does
not seek the judgement of God and His Messenger except if he is in the right.
Similarly it has described as `success' the act of one who complies and is
obedient when called to Allah and his Messenger so that judgement may be made
between him and his adversary. The Almighty says:
When they are called to God and His Messenger that he may judge between them,
lo, a party of them swerve aside; but if they are in the right, they will come
to him submissively. What, is there sickness in their hearts, or are they in
doubt, or do they fear that God may be unjust towards them and His Messenger?
Nay, but those-they are the wrongdoers. (24:48-50)
This indicates that turning away from the judgement of the Messenger only
arises from wrongdoing. God, the Exalted, also says:
All that the believers say, when they are called to God and His Messenger,
that he may judge between them, is that they say, `We hear, and we obey';
those-they are the successful. (24:51)
This indicates that success requires submission to Allah and His Messenger.
It means that the believer pledges allegiance to Allah and His Messenger, and
the requirement of allegiance is that he `sell' himself and all the wealth and
family he possesses to Allah and His Messenger. In this way, he neither owns his
ownself nor anything attached to him, since he has sold it all to Allah and His
Messenger, and it is not for him to act independently concerning himself or what
appertains to him, except with the approval of Allah and His Messenger.
Therefore Allah, the Exalted, has said: It is not for any believer, man or
woman, when God and His Messenger have decreed a matter, to have the choice in
the affair. Whosoever disobeys God and His Messenger has gone astray into
manifest error. (33:36)
Just as the believer does not have a choice in seeking the judgement of Allah
and His Messenger, since it is incumbent on him, similarly, he does not have a
choice in his affair after their judgement has been passed against him. Not
submitting to their judgement is disobedience and straying from the right path.
In addition, the Messenger was sent with the Book to judge between the people
with the truth, and this judgement was made obligatory on him, may benediction
of God be on him and his family.
Thus, referring to him and accepting his judgement became incumbent. If it
were not so, then, on the one hand, judging between the people with the truth
would not have been made obligatory on the Messenger, and on the other hand, it
would not have been incumbent on the people to seek the judgement of the
Messenger and abstain from determining it among themselves.
Note: Firstly, it should be noted that taking recourse to the taghut is
disobedience, and taking wealth by virtue of his judgement is unlawful gain,
even though what has been taken may be lawful. This is if the disputed wealth
consists of a particular property or article. As regards debt, it is doubtful
whether the same rule applies to it. Details of this should be sought from books
on jurisprudence.
Secondly, adjudication is only for the settlement of disputes, and has no
effect in altering facts, whatever they may be. When someone makes a false claim
and supports it with a false witness, or denies a truth and takes a false oath,
and that is hidden from the judge, the latter will rule according to the false
evidence or oath and contrary to the facts. It is incumbent on everyone who has
knowledge of it to be on his guard against it, for it is a piece of fire. The
details of it are also in legal books.
5. The Rules of Conduct for the Witness:
Judgement has a particular basis on which the judge relies when giving his
judgement. If it is strong, then the ruling is correct and in keeping with the
facts, not otherwise. Like the judge, the witness must be knowledgeable and
just. The difference between the two is that the judge must have a knowledge of
the Divine law, while the witness must have knowledge of the matter that has
been witnessed. He must comply with two points: firstly, he must have been
present at the event in order to have witnessed it himself; secondly, he must be
present in the court to report it (2:282) without alteration or evasion.
He must not avoid, conceal, or alter testimony, because "the one who conceals
it, his heart is sinful; and God has knowledge of the things you do" (2:28).
Allah, the Exalted, says:
O believers, be you securers of justice, witnesses for God, even though it be
against yourselves, or your parents and kinsmen, whether the man be rich or
poor; God stands closer to you than either of the two. Then follow not desire,
so as to swerve; for if you twist or turn, God is aware of the things you do.
(4:135)
The conclusion of this noble verse is that no personal, communal or economic
factor should interfere with the testimony, not even the love of oneself or of
parents or kinsmen. Similarly, economic factors, such as prosperity or poverty,
should not influence the mode of giving witness or abstention from it. That is
because Allah, the Exalted, is aware of the actions of His servants and witness
to them, whatever they may be.
Whoever knows that protects himself against lapses and humiliation. The verse
also shows that kinship is no hindrance to acceptance of the evidence of one of
the relatives, even if it is the child's against the father. The details
concerning the verse can be found in the books on law.
6. The Rules of Conduct for Judgement Between the People of the Book:
The two litigants may be Muslims, or Jews or Christians, or of differing
religions. If the two litigants are Muslims, the judge will rule between them
only in accordance with Islam. If they are Jews or Christians, then the judge
has the choice of ruling between them according to Islam, or referring them to
special courts of their religious communities so that they may be judged
according to them. Allah, the Exalted, says:
If they come to thee, judge thou between them, or turn away from them; if thou
turnest away from them, they will hurt thee nothing; and if thou judgest, judge
justly between them; God loves the just. (5:42)
This noble verse expressly suggests the choice between the two alternatives,
and it is not contradicted by the literal meaning (zahir) of another text
stipulating judgement between them in accordance with Islam, because, firstly,
an express text (nass) enjoys precedence over the literal meaning (zahir) and
also because the choice between the two alternatives is also in accordance with
Islam. Thus there is no room for thinking that this verse is abrogated by the
following one:
So judge between them according to what God has sent down, and do not follow
their caprices. (5:48)
There is no contradiction between the nass allowing choice and the zahir
specifying judgement in accordance with Islam. In addition, the choice has also
been revealed by Allah, the Exalted. As regards the elaboration of the opinion
which says that when the two litigants are from different religious communities,
it is permissible for a Muslim judge to rule according to their laws, Imam `Ali,
peace be upon him,
"Were the cushion folded for me, I would judge between the people of the Injil
in accordance with their Injil...". Details on the topic can be found in legal
works.
Some of our Imami legists [3] have supported the necessity of ruling between the
two parties in accordance with Islam, since referring them back to one of the
religious communities would cause fitnah. Our teacher, al-'Imam al-Khumayni, has
ruled that if a dhimmi man committed adultery with a dhimmi woman, or if one
dhimmi committed sodomy with another, the Islamic punishment (hadd) should be
enforced. [4]
Uncommon Judicial Rulings:
1. It has been stipulated in fiqh that adjudication has certain criteria
which the judge may not violate. These include: evidence or oath, the oath given
on weak and inconclusive evidence (qasamah in cases of lawth), the knowledge of
the judge, or admission, where the judge u not able to give a positive or
negative judgement violating them.
He may resort to drawing lots only when there is a conflict of rights, not in
order to determine and reveal the ruling but to make a division and in cases
which are similarly doubtful. The matter is elaborated in legal works. It ha;
been pointed out that drawing lots has a basis in the Noble Qur'an, and to
mention it here is not without benefit. God, the Exalted, has said:
For thou wast not with them, when they were casting quills which of them should
have charge of Mary; thou wart not with them, when they were disputing. (3:44)
...And cast lots, and he was of the rebutted. (37:141)
The last verse means that Jonah was a loser in the casting of lots when his
arrow appeared, and he was thrown into the sea and swallowed by the whale. That
has no connection with adjudication because of the general character of the act
of drawing lots. Nevertheless, it has some relation to it and so must be
indicated here.
1. The difference between the rulings of Dawud (A) and Sulayman (A) on
tillage-"when the sheep of the people strayed there" (21:78)may come to one's
mind Sometimes their difference is attributed to ijtihad, and at other times to
the revelation to Sulayman which abrogated the ruling of Dawud.
I say: With regard to Divine judgement, there is no scope for a prophet to
perform ijtihad according to personal judgement and reflection. In addition,
God, the Exalted, has said: And We made Sulayman to understand it. (21:79)
This suggests that the `understanding' was the result of Divine inspiration.
Similarly, that which was given to Dawud, peace be upon him, was from God, the
Mighty and Sublime, since God gave him "wisdom and speech decisive (fasl al-khitab)."
(38:20). It is said that by fasl al khitab is meant the rule that evidence lies
with the claimant and oath upon the denier.
As for the abrogation, it has perhaps not been established because of the
possibility of both the judgements being correct though Sulayman's ruling was
more beneficial and proper with regard to the litigants.
Notes:
[1]. Al-Tabataba'i, al-`Urwat al-wuthqa, p.3.
[2]. Al-Wasa'il, Chapter 4, "The Qualities of a Judge."
[3]. Al-Suyuti, Kanz al-`irfan, ii, 378.
[4]. Tahrir al-Wasi'lah, ii, 464, 470, 506, 507.
Comments posted are the sole opinion of the author and may not necessarily reflect the opinions of AIM. |
