Islamic Fiqh > Judgment and testimony > The judge (qadi): qualification, remuneration and independence > The judge in office: pay, independence and limits
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
Eighth condition: that the judge hear, see and speak. The scholars agree that the judge must have sound senses, hearing, seeing, speaking, for the loss of these senses prevents the completion of judgment between the two litigants.
Qadi Iyad said: "On requiring hearing and speech, the scholars never differed in principle: understanding is mostly impossible without them. They differed when these two afflictions occur after the contract: is the contract void and he dismissed, or not? Judging with both afflictions together is remote: rarely is a mute found who is not also deaf" (Tabsirat al-Hukkam 1/23; see Bada'i' as-Sana'i' 7/3, al-Mukhtasar al-Fiqhi 13/246, al-Bayan 13/21, an-Najm al-Wahhaj 10/144-145, Mughni al-Muhtaj 6/288, Kashshaf al-Qina' 6/378, Sharh Muntaha al-Iradat 6/475-476).
Imam Ibn Qudama (may Allah have mercy on him) said: "As for perfection of constitution: that he speak, hear and see. The mute cannot pronounce judgment, and not all people understand his gesture; the deaf does not hear the two litigants' words; the blind does not distinguish claimant from defendant, the acknowledged-for from the acknowledger, the witness from the one testified for. Some companions of ash-Shafi'i said the blind may be a judge, for Shu'ayb was blind; on the mute whose gesture is understood they have two views. Our proof: these senses count in testimony, so their loss prevents the office of judgment, like hearing; the station of testimony is below that of judgment: the witness testifies to few things whose reality he can grasp, while the judge's guardianship is general over the people's affairs; if his testimony is not accepted, judgment is all the more so. What they relate of Shu'ayb we do not concede: it is not established that he was blind; and even were it established, nothing follows here: those who believed with Shu'ayb (peace be upon him) were few, and they perhaps needed no judge among them, given their number and their fairness: it is no proof in our question" (al-Mughni 10/92-93).
Imam al-Mawardi (may Allah have mercy on him) said: "As for perfection of constitution, soundness is considered in three respects: soundness of sight, so he is not blind; soundness of hearing, so he is not deaf; soundness of tongue, so he is not mute. The blind: his appointment is not valid; if he becomes blind after appointment, his office is void, for he does not distinguish seeker from sought. Malik permitted appointing the blind, as he permitted his testimony. If he has a dimness seeing by day and not by night, his appointment is valid. If his sight is weak: if he sees shapes without recognizing faces, his appointment is not valid; if he recognizes faces when near but not when far, it is valid. The deaf: appointment not valid; if deafness befalls, the office is void, for he does not distinguish acknowledgment from denial. The preventing deafness is not understanding sounds even when loud; as for heaviness of hearing understanding loud sounds but not faint ones, the appointment is valid, though appointing one who hears is preferable. The mute: appointment not valid; if muteness befalls, the office is void, for he is incapable of executing judgments and enforcing rights. Abu al-'Abbas Ibn Surayj permitted his office when his gesture is understood, as he permitted his testimony; per the majority of our companions he is barred from both. If his tongue has a stutter, a lisp, a tie or a knot not preventing understanding of his speech, his appointment is valid: a deficiency not preventing comprehension; and should the utterance be obscure: the knot of Musa's tongue did not prevent the validity of his prophethood. The soundness of his limbs is not considered: his appointment is valid even if he is paralyzed or chronically infirm, though freedom from afflictions inspires more awe in office holders" (al-Hawi al-Kabir 16/155).
What is related from Imam Malik, that he permitted appointing the blind, is not established. Ibn 'Arafa said: "Al-Baji said: no disagreement on barring the office of the blind." Ibn Zarqun: "Al-Mawardi related its permissibility." Iyad: "This is not authentically related from Malik." Al-Muti'i mentioned al-Mawardi's report without criticizing it, and added: "Abu 'Ubayd related, from Ibn Abi Maryam, from Malik: barring his testimony." And al-Maziri, whose text reads: "It is related from Muhammad that he said: let not the blind be appointed judge, nor the one flogged for slander, nor the slave working to buy his price, nor the slave under a manumission contract; do you not see that the testimony of none of these is admitted, and judgment is greater than testimony" (al-Mukhtasar al-Fiqhi 13/248).
Imam ad-Dardir (may Allah have mercy on him) said: "The ruler must have sight, speech and hearing: no appointing the blind, the mute or the deaf; and if it occurs, the judgment of the blind, the mute and the deaf is executed, that is, not annulled: for the absence of these things is not a condition of his appointment's validity at the start or in duration, but an obligation that is not a condition; hence his statement: and his dismissal is obligatory, even if one of the mentioned afflictions befalls him. Two lessons are drawn: the unlawfulness of his appointment at the start and in duration, and the validity of his judgment after occurrence" (ash-Sharh al-Kabir with the hashiya of ad-Dusuqi 6/5; at-Taj wa-l-Iklil 5/54; Tahbir al-Mukhtasar 5/54).
Second question: the ruling on the judge in anger. The people of knowledge agree that the judge should not judge while angry; he should ground his scrutiny in the time when he is calm and balanced, so as to be able to strive on new cases and guard against error in judgments. If his state changes through anger or ire, so that his reason and character change, he suspends judgment, as a precaution against error, for 'Abd ar-Rahman ibn Abi Bakra relates from his father Abu Bakra (may Allah be pleased with him) that he wrote to his son, then in Sijistan: do not judge between two while angry, for I heard the Prophet (peace and blessings of Allah be upon him) say:
Let no judge judge between two persons while angry.al-Bukhari 3739; Muslim 1717
For in anger his reason changes and his opinion and thought are not completed.
Everything that preoccupies his thought is assimilated to anger: extreme hunger, severe thirst, distressing pain, holding back either of the two needs, heavy drowsiness, worry, anguish, sadness and joy: all these prevent the ruler from acting, for they prevent presence of heart and the completion of the thought through which the truth is usually reached; these states follow the rule of the anger named in the text. Whoever limits the prohibition to anger alone, without distressing worry, troubling fear, severe hunger and thirst, and the heart's occupation preventing understanding: his fiqh and understanding are slight.
If he judges in these states, his judgment is valid per the Hanafis, the Malikis, the Shafi'is and the Hanbalis per the school's position: az-Zubayr and an Ansari man brought their dispute to the Messenger of Allah (peace and blessings of Allah be upon him) over the irrigation channels of the Harra. The Messenger of Allah said to az-Zubayr: "Water your crop, then release the water to your neighbor." The Ansari said: "Is it because he is the son of your aunt, O Messenger of Allah?" The Messenger of Allah became angry until his face reddened, then said to az-Zubayr: "Water your crop and hold the water until it reaches the walls, then release it to your neighbor." He (peace and blessings of Allah be upon him) thus judged in a state of anger.
The Messenger of Allah (peace be upon him), seized with the dispute between az-Zubayr and an Ansari man over the channels of the Harra, said: "Water your crop, then release the water to your neighbor." The man said: "Even the son of your aunt?" His face reddened with anger, then he said: "Water your crop and hold the water until the walls, then release it to your neighbor."al-Bukhari 4309; Muslim 2357
The Qadi of the Hanbalis holds that if he judges in this state, his judgment is not executed: he was forbidden from it, and prohibition entails the invalidity of the prohibited.
Ibn Rushd said: "They agreed, as far as I know, on the execution of his judgment; and it may be said: not executed in what the text names expressly, namely anger, for prohibition indicates the invalidity of the prohibited" (Bidayat al-Mujtahid 2/355; see Sharh Fath al-Qadir 7/271, Sharh Sahih al-Bukhari 8/226, al-Kafi 497, al-Qawanin al-Fiqhiyya p. 195, al-Hawi al-Kabir 16/32-33, al-Muhadhdhab 2/293, Sharh Sahih Muslim 12/15, al-Mughni 10/99, I'lam al-Muwaqqi'in 1/217, Sharh az-Zarkashi 3/369-370, al-Mubdi' 10/38-39, al-Insaf 11/109, Kashshaf al-Qina' 6/395).
The sheets open on the end of the preceding question, on judgment based on false testimony: "As for the answer to their analogy with mutual imprecation, from two aspects: first: the judgment was not executed by the lie, but by the imprecation; second: imprecation initiates a new separation, whereas judgment by false testimony executes a prior separation: if none existed, executing the nonexistent is invalid. As for their proof from the judge's ruling on matters of ijtihad: there is nothing inner contradicting the outer, hence his judgment is executed outwardly and inwardly, unlike false testimony, where the outer contradicts the inner: his judgment is executed outwardly, not inwardly" (adh-Dhakhira 10/146-147; al-Furuq 4/100-101; al-Hawi al-Kabir 17/11-12; al-Mughni 10/105; Fath al-Bari 12/141-142; al-Mubdi' 10/99; al-Insaf 11/312; Matalib Uli an-Nuha 6/533).
Fifth question: the judge's taking of a stipend for judging. Most scholars have stated it in their texts: if the judge is needy, he may take a stipend from the public treasury of the Muslims; if he is not needy, they differed; and they agreed that taking a fee for judging is not permitted: he takes a stipend, not a fee.
Imam al-Kasani (may Allah have mercy on him) said: "May the judge take a stipend? If poor, he may: he works for the Muslims, so he must have sufficiency and has none: his sufficiency lies in the treasury, without that being the wage of his toil. The imam should be generous toward him and his family, lest he covet people's wealth. It is related that the Messenger of Allah (peace and blessings of Allah be upon him), sending 'Itab ibn Usayd to Mecca and placing him in charge of it, granted him four hundred dirhams every year. It is related that the noble Companions (may Allah be pleased with them) granted Abu Bakr as-Siddiq (may Allah be pleased with him) each day one dirham and a third, or two thirds, from the treasury; likewise the like of it is related for Umar (may Allah be pleased with him) from the treasury, and Ali (may Allah be pleased with him) had each day a plate of tharid. Umar granted a stipend to Shurayh, and it is related that Ali fixed for him five hundred dirhams every month. If he is rich, they differed: some: it is not lawful for him to take, for taking follows the rule of need, and he has none; others: taking is lawful, and better for him to take. Lawful, for he is a worker for the Muslims: his sufficiency rests upon them, not by way of wage; better, for though not needy, a needy judge will come after him and this will have become sunna and institution, restraining the rulers, especially of our time, from abolishing the judges' stipends: abstaining from taking would be stinginess with another's right: taking is therefore better" (Bada'i' as-Sana'i' 7/13-14; al-Fatawa al-Hindiyya 3/329-330).
Ibn Farhun the Maliki (may Allah have mercy on him) relates from al-Maziri: "As to drawing provision from the treasury: one on whom the office has devolved while he can do without it: he is instructed not to take compensation for judging, which is greater in awe and more conducive in souls to belief in his reverence and majesty; and if the office has not devolved on him and he needs to seek provision from the treasury: it is permitted for him to take it." And from Mufid al-Hukkam: Asbagh said: "He should take his stipend only from the fifth, or from the jizya, or from the tithes of the protected People of the Book" (Tabsirat al-Hukkam 1/27).
Imam al-'Imrani (may Allah have mercy on him) said: "As to taking the stipend for judging, one looks: if the office has devolved on him and he has sufficiency, it is not lawful for him to take the stipend: it is an obligation directed at him, and he may not take it while dispensed. If he has no sufficiency, or was an earner whose trade the office suspends, it is lawful for him to take: his earning is voided by the office, his livelihood gone. If the office has not devolved on him: if he has sufficiency, the preferable course is that he take nothing, it being an act of piety for him, and taking compensation is disliked; if he takes it, it is permitted, per what is related: Abu Bakr (may Allah be pleased with him), upon taking the caliphate, went out to the market with a bundle of clothes. They said: what is this? He said: I earn my family's living. They said: this does not befit the caliphate. The Companions (may Allah be pleased with them) gathered and fixed for him two dirhams daily from the treasury. It is also related that they set for him each day two sheep, one for his lunch and one for his dinner, and a thousand dirhams yearly; when Umar (may Allah be pleased with him) took office he said: this does not suffice me, and they doubled it for him. What holds for the caliphate holds for judgment: one meaning. Umar said: 'I have placed myself, regarding this wealth, in the station of the orphan's guardian: let him who is rich abstain, and him who is poor take with fairness' (an-Nisa 4:6). It is related that Umar sent to Kufa 'Ammar ibn Yasir as governor, 'Abdallah ibn Mas'ud as judge and 'Uthman ibn Hunayf as surveyor, fixing for them each day a sheep: half with its extremities for 'Ammar, the other half between 'Abdallah and 'Uthman, saying: a city from which a sheep leaves each day is swiftly ruined. When Umar entrusted judgment to Shurayh, he granted him each month one hundred dirhams; and when Ali entrusted it to him, he maintained that. The treasury's wealth is for interests, and this is an interest. What the judge takes is not a fee but a stipend, like what the imam and the muezzin take. If he contracts a lease for judging, it is void: unspecified work. If the imam finds a volunteer to judge without stipend, he does not appoint to judgment one who seeks it. With his stipend the judge is given something for the paper he writes the records and registers with, from the treasury: it is an interest; if there is nothing in the treasury, or something weightier is needed there, the judge says to him whose right is established: if you choose to bring paper for me to write for you, do so. He is also given, with his stipend, for the attendants posted at his door: he needs them, as the agent for the alms is needed" (al-Bayan 13/14 and 16).
Imam Ibn Qudama (may Allah have mercy on him) said: "The judge may take the stipend; Shurayh, Ibn Sirin, ash-Shafi'i and most of the people of knowledge permitted it. It is related from Umar (may Allah be pleased with him) that he employed Zayd ibn Thabit over judgment and fixed him a stipend; he granted Shurayh one hundred dirhams monthly; he sent to Kufa 'Ammar, 'Uthman ibn Hunayf and Ibn Mas'ud, granting them each day a sheep, half for 'Ammar and half for Ibn Mas'ud and 'Uthman; Ibn Mas'ud was their judge and their teacher. He wrote to Mu'adh ibn Jabal and Abu 'Ubayda when he sent them to Sham: 'Look for righteous men from among you, employ them over judgment, be generous to them, grant them stipends and spare them from Allah's wealth.' Abu al-Khattab said: he may take the stipend in need; without it: two views. Ahmad said: it does not please me that he take a fee for judging; and if so, to the extent of his work, like the orphan's guardian. Ibn Mas'ud and al-Hasan disliked a fee for judging; Masruq and 'Abd ar-Rahman ibn al-Qasim took no fee, saying: we take no fee for being just between two. The companions of ash-Shafi'i said: if the office has not devolved on him, taking the stipend is permitted; if it has, not, except in need. The sound view: the permissibility of taking the stipend in every state, because of Abu Bakr (may Allah be pleased with him), for whom the stipend of two dirhams daily was fixed when he took the caliphate, and of what we recalled: Umar granted stipends to Zayd, Shurayh and Ibn Mas'ud, and ordered stipends fixed for those who would take office; and the people need him: were stipends not lawful, the office would be suspended and rights lost. As to hiring oneself for it: not permitted. Umar (may Allah be pleased with him) said: it does not befit the Muslims' judge to take a fee for judging; this is ash-Shafi'i's position, with no disagreement known to us: it is an act of piety whose doer is singled out to be among the people of piety, like prayer; and none performs it for another: he performs it for himself; and it is unspecified work. If the judge has no stipend and says to the two litigants: I shall not judge between you until you set me a stipend for it: permitted, and possibly not permitted" (al-Mughni 10/90-91).
Paying money to obtain the office of judgment and paying bribery. The jurists agree: whoever is not fit for judgment is forbidden to pay a bribe to be made judge, and his judgment is then not executed.
Imam as-Suyuti (may Allah have mercy on him) said: "Whoever takes the office of judgment by bribery does not become judge, by agreement" (Jawahir al-'Uqud 2/290).
The Hanafis: "If he takes the office by bribery, that is, money he paid for his appointment: the appointment is not valid, he does not become judge, and were he to judge, it would not be executed" (Tabyin al-Haqa'iq 4/175-176; al-Bahr ar-Ra'iq 6/284; Hashiyat Ibn Abidin 5/363; Mu'in al-Hukkam 1/9).
Imam at-Trabulsi the Hanafi (may Allah have mercy on him), on obtaining judgment by bribery, said in al-Khulasa: "Whoever takes the office by bribery: the sound view is that he does not become judge; were he to judge, his judgment is not executed; by this the imam gives fatwa. Whoever is appointed by a bribe he paid, or that people paid knowing of it: his appointment is not valid, like his judging by bribery." In an-Nawazil: "Whoever takes the office by bribery or through intercessors is like an arbiter: if his judgment is raised before another judge, he executes it if it conforms to his view, else he voids it. Whoever takes it by bribery: his judgment is not executed, without need of annulling it; whoever takes it through intercessors is like one appointed rightfully: if he takes a bribe and judges, his judgment is executed in what he took no bribe for, not in what he took a bribe for." From al-Muhit, in the Nawadir of Ibn Rustam: "Executed in both, said some of the shaykhs: void in both; and the first is what Shams al-A'imma as-Sarakhsi took. If it is his son or one of his assistants who took the bribe: at his command and with his approval, it is as if he had taken it himself: his judgment is rejected; without his knowledge, his judgment is executed; and the briber must return what he took. If he takes a bribe and judges, or judges then takes, or his son took, or one whose testimony is not accepted: his judgment is not executed, for he acts for himself or for his son" (Mu'in al-Hukkam 1/9).
Among the Malikis, Ibn Farhun (may Allah have mercy on him) said: "As to obtaining judgment by bribery, it is the most severely reprehensible of things." Abu al-'Abbas, of the students of Ibn Surayj the Shafi'i, in the book of the conduct of the judge: "Whoever accepts the office of judgment under a contract and is given a bribe for it: his appointment is void and his judgment rejected, even if he judged by the truth. If he is given a bribe for the dismissal of a judge so as to be appointed in his place: the same. If the bribe is given for the dismissal without appointment, and the first is dismissed by bribery, then the second is made judge in his place without bribery: one looks at the dismissed one: if he was upright, giving the bribe for his dismissal is forbidden and the dismissed one remains in office, unless the one who dismissed him repented by returning the bribe before the dismissal; and the replacement's judgment is likewise void, unless he too repented before the appointment: his judgment is then valid. If the dismissed one was unjust, the replacement's judgment is not void. The author Abu al-'Abbas said: this is an extrapolation on the school of ash-Shafi'i and Abu Hanifa (may Allah have mercy on them both)" (Tabsirat al-Hukkam 1/13; Mawahib al-Jalil 8/73-74; Minh al-Jalil 8/269).
The jurists differed over one who deserves the office but cannot obtain it except by paying the bribe: is it permitted for him to pay the money, or forbidden absolutely? The majority of the jurists, Hanafis, Malikis and Shafi'is, with a detail to follow, hold that paying money and bribe is permitted if the office has devolved on him and he cannot take it otherwise.
Ibn Nujaym the Hanafi (may Allah have mercy on him): "I have not seen the ruling on the case where the office has devolved on him and he is not appointed except with money: is it lawful to pay it? Nor the ruling on the validity of his dismissal. It should be lawful to pay the money, as seeking it is lawful; and his dismissal forbidden where it has devolved, and not valid" (al-Bahr ar-Ra'iq 6/297-298). Ibn Abidin, after relating Ibn Nujaym's words: "It is said in an-Nahr: this is apparent as to the validity of his appointment; and it is contradicted by the author's unqualified statement: whoever takes the office by bribery does not become judge; as to the invalidity of his dismissal: it is contested" (Hashiyat Ibn Abidin 5/366).
Among the Malikis, Imam ad-Dardir (may Allah have mercy on him) holds that paying money in seeking the office is permitted in three situations: first: that the office has devolved on him; second: that he fears a trial for himself, his wealth or his children should he not take office, even if he does not singly meet the conditions of judgment; third: that he fears the loss of the right of its holders through the appointment of another whose office is forbidden: if he does not accept, the people's rights are lost, and it rests upon him. Ad-Dardir: "It does not harm him to pay money in seeking it then: it is for a matter that has become obligatory upon him." Ad-Dusuqi (may Allah have mercy on him): his statement, it does not harm him to pay money in seeking it then, that is, when the office has devolved on him, or he fears the trial or the loss of the right if he does not take office. Shaykh al-Misnawi relates from Ibn Marzuq: seeking is obligatory upon him if it be without money; some went to excess saying: "even with money." Another text notes: if he is told that seeking is obligatory upon him, he seeks, and is prevented from appointment unless he pays money: is it lawful for him to pay it? The apparent view: no, for they said: he is only obliged to accept if he is aided upon the truth; and paying money for judgment belongs to the falsehood he was not aided to abandon: forbidden then (ash-Sharh al-Kabir with the hashiya of ad-Dusuqi 6/6).
The Shafi'is: "If his seeking of the office depends on paying money and the office is obligatory upon him, he is bound to pay the money to become judge, like buying the neck for expiation and food in famine. For whom the office is recommended when invited to it: is seeking it and paying its price recommended for him? Two views: some said: seeking is recommended for him, per Allah's word relating of Yusuf: 'Appoint me over the treasures of the land: I am a keeper, and I know' (Yusuf 12:55): he sought custodianship; and it is lawful for him to pay the price, for by it he reaches his aim. Others said: it is not recommended for him, nor lawful to pay the price, per what is related of the Prophet (peace and blessings of Allah be upon him) to 'Abd ar-Rahman ibn Samura: 'O 'Abd ar-Rahman, do not ask for authority: if you are given it upon asking, you are left to it; if you are given it without asking, you are aided in it,' and per Anas: 'Whoever seeks the office and is aided upon it is left to it; whoever does not seek the office, unaided... Allah sends down to him an angel to set him right.' Whoever holds the first view carries the report upon one who seeks it out of love of command; if it is for piety or for his sufficiency, there is no harm" (al-Bayan 13/11-12; an-Najm al-Wahhaj 10/138; Mughni al-Muhtaj 6/284-286; Tuhfat al-Muhtaj 12/73-74).
The Hanbalis hold that paying money for appointment to judgment is forbidden absolutely; and it is forbidden for the one to whom money is paid for judgment to take it: it is consuming people's wealth by falsehood (Kashshaf al-Qina' 6/365; Sharh Muntaha al-Iradat 6/464; Matalib Uli an-Nuha 6/456).
The jurists agree: in principle, the one who takes the office of judgment should be the best of those present fit for judgment and the one in whom the conditions of judgment are complete. If an absolute mujtahid exists: per the Malikis, an imitator may not take the office of judgment in the presence of an absolute mujtahid, and his appointment is void: this is what many Malikis relied upon. The second view, which is the school's position: his appointment is valid.
If no absolute mujtahid exists: appointing the less qualified in the presence of the more qualified is valid per the majority of the jurists, Malikis, Shafi'is and Hanbalis, and it is the meaning of the Hanafis' words: the excess of merit is a refinement in choice, not counted among the conditions of entitlement; and the less qualified among the Companions and the early generations gave fatwas in the presence of the more qualified, famously and repeatedly, with none denouncing it: it was thus a consensus (Mawahib al-Jalil 8/54; ash-Sharh al-Kabir with the hashiya of ad-Dusuqi 6/3-4; al-Hawi al-Kabir 16/161; al-Ahkam as-Sultaniyya p. 8; al-Insaf 11/193; Kashshaf al-Qina' 6/388).
The jurists of the four schools agree: if two men refer to a man as arbiter between them and accept him, and he is of those fit for judgment, and he judges between them: it is valid, per Allah's word: "Appoint an arbiter from his family and an arbiter from hers" (an-Nisa 4:35); and per the practice of the Messenger of Allah (peace and blessings of Allah be upon him), who arbitrated Sa'd ibn Mu'adh for Banu Qurayza as to enslaving their children and killing their fighters, as in the Sahih collections; and per what is related from Hani': when he came to the Messenger of Allah with his people, he heard them style him Abu al-Hakam. The Messenger of Allah called him and said: "Allah is the Judge and to Him belongs judgment: why are you styled Abu al-Hakam?" He said: my people, when they differ over something, come to me and I judge between them, and both parties are pleased. The Messenger of Allah said: "How excellent this is! What children do you have?" He said: Shurayh, Muslim and 'Abdallah. He said: "Who is the eldest?" I said: Shurayh. He said: "You are Abu Shurayh."
Allah is the Judge and to Him belongs judgment: why are you styled Abu al-Hakam?... How excellent this is!Abu Dawud 4955; an-Nasa'i 5387 (authentic hadith)
It is related, raised to the Prophet: "Whoever judges between two by their mutual consent and does not act justly between them: he is cursed." Ibn al-Mulaqqin said in al-Badr al-Munir (9/555): "I say: this hadith is not valid for argument, for it comes from the copy of Ibn Jarrad, which is a void copy (2118); Ibn al-Jawzi even mentioned that it is a fabricated copy, and he went far in denouncing the hadith master al-Khatib when he argued with a hadith from it." Were his judgment not binding upon the two, this blame would not attach to him.
It is related that between Umar and Ubayy ibn Ka'b there arose a dispute over palms: they arbitrated Zayd ibn Thabit between them. They came to him; Zayd came out and said to Umar: "Would that you had sent to me, and I would have come to you, O Commander of the faithful?" Umar said: "The judgment is come to in his house." They entered his house; he placed a cushion for Umar, who said: "This is the first of your injustice." The oath fell upon Umar. Zayd said to Ubayy: "If only you would exempt the Commander of the faithful." Umar said: "From an oath that binds me?" Ubayy said: "We exempt the Commander of the faithful and believe him" (weak report: related by 'Ali ibn al-Ja'd in his Musnad, number 1802, and by his route by al-Bayhaqi in as-Sunan al-Kubra 10/144; in its chain, ash-Sha'bi did not meet Umar).
No disagreement among the jurists: the judge is bound to judge by what Allah has revealed. If he does not judge by what Allah has revealed, his case is not free of two hypotheses: that he denies and rejects what Allah has revealed, or that he deems what he judges by better than Allah's judgment: there, no disagreement among any of the Muslims on his disbelief. As for one who judges by other than what Allah has revealed while deeming Allah's judgment better than his own: he is sinful; is he a disbeliever for it? The scholars have discussed it.
Imam Abu Bakr al-Jassas (may Allah have mercy on him), on His word "Whoever does not judge by what Allah has sent down, those are the disbelievers" (al-Ma'ida 5:44): "The verse does not leave two cases: that the intent is the disbelief of association and rejection, or the disbelief of ingratitude without rejection. If the intent is rejecting Allah's rule, or ruling by other than it while proclaiming it Allah's rule: this is disbelief exiting the religion, and its doer an apostate if he was a Muslim; on this interpreted it whoever said it was revealed about the Children of Israel and applies to us: whoever among us rejects a ruling, or rules by other than Allah's ruling then says: this is Allah's ruling, is a disbeliever as the Children of Israel became when they did that. If the intent is the disbelief of ingratitude: ingratitude can consist in leaving gratitude without rejection: its doer does not exit the religion. The more apparent is the first meaning, given that He named disbelief the failure to judge by what He revealed" (Ahkam al-Quran 4/93).
Imam Ibn Jarir at-Tabari (may Allah have mercy on him), after mentioning the scholars' views on the verse's revelation: "The worthiest of these views in my judgment is the view of whoever said these verses were revealed about the disbelievers of the People of the Book, for the verses before and after them were revealed about them: they are the ones meant, and the context of these verses reports of them: that they be a report about them is worthier. If one says: Allah generalized the report to all who do not judge by what Allah has revealed, how did you make it specific? It is said: Allah generalized the report about a people who rejected Allah's ruling that He had judged in His Book: He informed that they are disbelievers for abandoning it in the manner they abandoned it. The like holds for whoever does not judge by what Allah has revealed, rejecting it: he is a disbeliever before Allah, as Ibn 'Abbas said; for his rejection of Allah's ruling, after knowing that He sent it in His Book, is the counterpart of rejecting the prophethood of His Prophet after knowing he is a prophet" (Tafsir at-Tabari 6/257).
Imam Ibn al-'Arabi (may Allah have mercy on him): "Tawus and others said of His word 'those are the disbelievers': it is not disbelief transferring out of the religion, but disbelief lesser than disbelief. This is distinguished: if he rules by what he holds deeming it from Allah, it is a substitution entailing disbelief; if he rules by it out of desire and disobedience, it is a sin that forgiveness may overtake, per the principle of the people of the Sunna on forgiving sinners" (Ahkam al-Quran 2/127).
Imam al-Qurtubi (may Allah have mercy on him): "Ibn Mas'ud and al-Hasan said: it is general in everyone who does not judge by what Allah has revealed, Muslims, Jews and disbelievers, that is, believing it and deeming it lawful; as for one who does it believing he commits a prohibition: he is of the sinners among the Muslims, and his affair is to Allah: if He wills He punishes him, if He wills He forgives him" (Tafsir al-Qurtubi 6/190).
Imam Ibn al-Jawzi (may Allah have mercy on him): on His word "those are the disbelievers" (al-Ma'ida 5:44), then "those are the wrongdoers" (al-Ma'ida 5:45), then "those are the sinners" (al-Ma'ida 5:47), the scholars differed on those about whom they were revealed, five views: first: about the Jews specifically, related by 'Ubayd ibn 'Abdallah from Ibn 'Abbas, and Qatada said it; second: about the Muslims, Sa'id ibn Jubayr related it from Ibn 'Abbas to that effect; third: general over the Jews and this community, said by Ibn Mas'ud, al-Hasan, an-Nakha'i and as-Suddi; fourth: about the Jews and the Christians, said by Abu Majliz; fifth: the first verse about the Muslims, the second about the Jews, the third about the Christians, said by ash-Sha'bi. On the disbelief meant in the first verse, two views: disbelief in Allah; or disbelief in that ruling, not disbelief transferring from the religion. The decisive speech: whoever does not judge by what Allah has revealed, rejecting it while knowing Allah sent it, as the Jews did: he is a disbeliever; whoever does not judge by it inclining to desire, without rejection: he is a wrongdoer and a sinner. 'Ali ibn Abi Talha related from Ibn 'Abbas that he said: 'Whoever rejects what Allah has revealed has disbelieved; whoever affirms it and does not judge by it: he is a sinner and a wrongdoer'" (Zad al-Masir 2/366-367).
Shaykh of Islam Ibn Taymiyya (may Allah have mercy on him) said: "It is binding on everyone who judges between two to judge with justice, per His word: when you judge between people, judge with justice (an-Nisa 4:58): no ruler may ever judge with injustice. The Law by which the Muslims' rulers must judge is entirely justice: there is no injustice in the Law at all; Allah's judgment is the fairest of judgments. The Law is what Allah has revealed: whoever judges by what Allah has revealed has judged with justice; but justice varies with the variety of laws and paths: the justice of each law is its own. He mentions the ruling of the Torah and the Gospel, then that He sent down the Quran, commanded His Prophet to judge between them by the Quran and not follow their desires against what came to him of the Book, informed that He gave each of the prophets a law and a path, commanded him to judge by what Allah revealed, warned him that they would tempt him from part of what Allah revealed, and informed that this is Allah's judgment and that whoever seeks other than it seeks the judgment of the pre-Islamic age, then His word: those are the disbelievers (al-Ma'ida 5:42-50). No doubt: whoever does not believe in the obligation of judging by what Allah revealed upon His messenger is a disbeliever; and whoever deems it lawful to judge between people by what he sees as justice without following what Allah revealed is a disbeliever: there is no nation but it commands judging with justice, and justice in its religion may be what its notables see. Many who ascribe themselves to Islam judge by their customs which Allah did not reveal, like the precedents of the desert dwellers and the orders of their obeyed chiefs, and hold that this is what should be judged by rather than the Book and the Sunna: this is the disbelief. Many people have submitted to Islam but with this judge only by their running customs that their obeyed ones command: these, if they know that judging by other than what Allah revealed is unlawful and do not submit to it, deeming it lawful to judge contrary: they are disbelievers; otherwise they are of the ignorant. Allah commanded all the Muslims, when they dispute over anything, to refer it to Allah and the Messenger (an-Nisa 4:59), and swore by Himself that they do not believe until they make you judge of what has broken between them, then find no constraint in themselves over what you have decreed and submit fully (an-Nisa 4:65): whoever does not submit to the judgment of Allah and His Messenger does not believe. As for one who submits to the rule of Allah and His Messenger inwardly and outwardly but disobeys and follows his desire: he is of the rank of the disobedient like him. This verse is of what the Khawarij use to declare the holders of command disbelievers who do not judge by what Allah revealed, then claim their belief is Allah's judgment: the people have spoken at length here, and what I have mentioned is indicated by the verse's context. The upshot: judging with justice is absolutely obligatory, in every time and place, upon everyone and for everyone; and judging by what Allah revealed to Muhammad (peace and blessings of Allah be upon him) is a specific justice, the most complete and fairest of justice, obligatory upon the Prophet and whoever follows him; whoever does not submit to the judgment of Allah and His Messenger is a disbeliever. This binds the community in everything it disputes, doctrinal and practical (al-Baqara 2:213; ash-Shura 42:10; an-Nisa 4:59): the common affairs of the community are judged only by the Book and the Sunna; none may bind the people to the word of a scholar, an emir, a shaykh or a king. Whoever believes he judges between people by some of that and not by the Book and the Sunna is a disbeliever. The Muslims' rulers judge in specific matters, not universal ones; judging in specifics, they must judge by what is in Allah's Book, else by the Sunna of His Messenger (peace and blessings of Allah be upon him), else the judge strives by his opinion. The Prophet (peace and blessings of Allah be upon him) said:
The judges are three: two in Hell and one in Paradise: whoever knows the truth and judges by it is in Paradise; whoever knows the truth and judges contrary to it is in Hell; and whoever judges for the people in ignorance is in Hell.Abu Dawud 3573; at-Tirmidhi 1322; Ibn Majah 2315 (authentic hadith)
And when he judges with knowledge and justice: striving and being right, two rewards; striving and erring, one reward, as established in the two Sahihs from the Prophet (peace and blessings of Allah be upon him)" (Minhaj as-Sunna an-Nabawiyya 5/128 and 132).
He also said: "Man, whenever he makes lawful the agreed unlawful, or forbids the agreed lawful, or substitutes the agreed Law, is a disbelieving apostate by the jurists' agreement; and on its like was revealed, per one of the two views, His word 'whoever does not judge by what Allah has sent down, those are the disbelievers': that is, the one deeming lawful judgment by other than what Allah revealed. The word Law is said, in people's usage, in three senses: the revealed Law, that which the Messenger brought: following it is obligatory and whoever opposes it must be punished; second, the interpreted Law: the opinions of the mujtahid scholars therein, like Malik's school and the like: following it is permissible, neither obligatory nor forbidden, and none may bind the generality of people to it nor prevent them from it; third, the substituted Law: lying upon Allah and His Messenger, or upon people by false testimonies and the like, and manifest injustice: whoever says this is of Allah's Law is a disbeliever without dispute, like whoever says blood and carrion are lawful, even were he to say: this is my school" (Majmu' al-Fatawa 3/267-268).
Imam Ibn al-Qayyim (may Allah have mercy on him): "The interpretation of Ibn 'Abbas and the generality of the Companions of His word 'those are the disbelievers': Ibn 'Abbas said: it is not disbelief transferring from the religion; rather when he does it, it is disbelief lesser than disbelief, not like disbelieving in Allah and the Last Day. Tawus said likewise, and 'Ata' said: disbelief lesser than disbelief, wrong lesser than wrong, sin lesser than sin. Some interpreted the verse of abandoning judgment by what Allah revealed, rejecting it: 'Ikrima's view, a lightly regarded interpretation, for his very rejection is disbelief, whether he judges or not. Some interpreted it of abandoning judgment by all that Allah revealed, entering therein judgment by divine oneness and Islam: the interpretation of 'Abd al-'Aziz al-Kinani, also remote, for the threat bears upon negating judgment by the revealed, which includes suspending it in whole and in part. Some interpreted it of judging contrary to the text deliberately, without ignorance of it or error of interpretation: al-Baghawi related it of the scholars generally. Some interpreted it of the People of the Book: Qatada's, ad-Dahhak's and others' view, remote and contrary to the wording's apparent sense: it is not to be taken. Some made it disbelief transferring from the religion. The sound view: judging by other than what Allah revealed covers both disbeliefs, the lesser and the greater, per the judge's state: if he believes in the obligation of judging by what Allah revealed in this occurrence and turns from it in disobedience, while acknowledging he deserves punishment: lesser disbelief; if he believes it not obligatory and that he is free regarding it, certain it is Allah's judgment: greater disbelief; and if he is ignorant of it and errs: he is of the erring, having the ruling of the erring" (Madarij as-Salikin 1/336-337).