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The Islamic System of Judiciary in the Qur'an
Ayatullah Jawadi Amuli
Translated from the Arabic by Batool Ispahany
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:
- The need for the judiciary (al-qada'), which
is indispensable for the life of human society.
- The criterion for judiciary.
- The rules of conduct for the judge, his qualities,
rights, and particular duties.
- 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.
- 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
judgment of Allah and His Messenger, by appointing Him as arbitrator in
their disputes, and by not turning away from Him to another, since His
judgment 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 judgment as regards the subject has not been
ascertained and the subject's judgment 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 judgment (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 judgment
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 judgment 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 judgment of pagandom then that they are
seeking? Yet who is fairer in judgment than God, for a people having
conviction? (5:50)
These verses suggest that judgment is either the
judgment of Allah, determined by revelation, or the judgment of pagandom
(jahiliyyah). The latter includes every judgment 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 judgment
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 judgment 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 judgment 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 Judgment. 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 judgment 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 judgment (ray) in' religion,
and whoever rules through his personal judgment 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 judgment 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
judgment 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 judgment. 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
judgment 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 judgment 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 judgment 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 judgment, 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 judgment 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 judgment, he would have
sold the judgment 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 judgment 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 judgment 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 judgment 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
judgment should be in accordance with the truth; secondly, the efficient
good (al-husn al-fa`ili), which is that the judgment 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 judgment of one
in whom he has been commanded to disbelieve. It is also not for an
oppressor (taghut) to appoint himself to judgment. 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 judgment 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 judgment 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 judgment 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 judgment 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. Whooever 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 judgment of Allah and His Messenger, since it is incumbent on him,
similarly, he does not have a choice in his affair after their judgment
has been passed against him. Not submitting to their judgment 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 judgment was made obligatory on him, may benediction of God be on
him and his family. Thus, referring to him and accepting his judgment
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 judgment 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
judgment 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:
Judgment has a particular basis on which the judge
relies when giving his judgment. 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 Judgment 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 judgment 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 judgment 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 judgment 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 judgment, there is no
scope for a prophet to perform ijtihad according to personal
judgment 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
judgments being correct though Sulayman's ruling was more beneficial
and proper with regard to the litigants.
Endnotes
[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.
The original in Arabic
was published by Al-Tawhid (Arabic), No. 14 (3rd year, Jamadi al-'Awwal-Jamadi
al-Thani 1405) pp. 44-55.
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