Islamic Fiqh > Judgment and testimony > Judgment (qada) and its conditions > The pillars and conditions of judgment
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Updated on 26 September 2026 at 7:12 PM
Islamic law surrounds access to the office of judge with a series of conditions debated point by point by the four schools: adulthood, freedom, maleness, justice, knowledge and soundness of the senses. There follow the status of a judgment rendered by a woman or a disbeliever appointed by force, the appointment of the less qualified despite the more qualified, the scope of arbitration between individuals, and finally the second pillar of judgment: that upon which the judge rules. Each position rests on its Quranic and prophetic proofs and on its classical references.
Al-Qadi Abu Bakr holds that it is not sufficient for the judge to possess the intellect required for legal responsibility: he must further have sound discernment and keen intelligence, and be far from inattention and error ("Tabsirat al-Hukkam", 1/21; see "Bada'i' al-Sana'i'", 7/3; "al-Jawhara al-Nayra", 6/199; "al-Sharh al-Kabir" with the Hashiya of al-Dasuqi, 6/3; "al-Mughni", 10/92; "Sharh al-Zarkashi", 3/366; "Kashshaf al-Qina'", 6/374; "Sharh Muntaha al-Iradat", 6/475).
Imam al-Mawardi confirms that the second condition, namely the intellect, is unanimously agreed upon as to its consideration, and that one is not satisfied with the intellect sufficient for legal obligation, the one tied to knowledge of necessary cognitions. The judge must have sound discernment and keen intelligence, be far from inattention and heedlessness, and reach through his acumen the clarifying of what is obscure and the untangling of what is knotted ("al-Ahkam al-Sultaniyya", p. 72; "al-Hawi al-Kabir", 16/154; "al-Najm al-Wahhaj", 10/143; "Mughni al-Muhtaj", 6/287-288).
Third condition: adulthood. The people of knowledge are unanimous that the judge must be adult, based on the statement of Abu Hurayra (may Allah be pleased with him):
Seek refuge in Allah from the head of the seventy and from the leadership of children.Hasan hadith, narrated by Ahmad (8302)
The child is indeed under guardianship, so he cannot exercise guardianship over others. Moreover, the child deserves to be placed himself under interdiction (hajr), while the judge deserves to pronounce interdiction against others: the two qualities are mutually exclusive ("Bada'i' al-Sana'i'", 7/3; "al-Jawhara al-Nayra", 6/199; "al-Sharh al-Kabir" with the Hashiya of al-Dasuqi, 6/3; "al-Mughni", 10/92; "al-Ahkam al-Sultaniyya", p. 72; "al-Hawi al-Kabir", 16/154; "al-Najm al-Wahhaj", 10/143; "Mughni al-Muhtaj", 6/287-288; "Sharh al-Zarkashi", 3/366; "Kashshaf al-Qina'", 6/374; "Sharh Muntaha al-Iradat", 6/475).
The jurists of the four schools agree that the judge must be free, for the guardianship of a slave is not valid: he is deficient in guardianship over himself, all the more over others.
Imam Ibn Rushd writes: as for the condition of freedom, there is no disagreement ("Bidayat al-Mujtahid", 2/344). Abu al-Walid al-Baji reports that al-Qadi Abu Muhammad said there is no disagreement on this among the Muslims: the benefits of a slave rightfully belong to his master, who therefore cannot devote them to judging between the Muslims; moreover, the slave's inviolability is diminished in a way that affects the imamate, like the woman ("al-Muntaqa Sharh al-Muwatta'", 5/183).
The jurists differ: is being a man a condition of judgeship, or is the appointment of a woman valid?
The Hanafis hold that maleness is not, in principle, a condition for appointing someone to judgeship, because the woman is qualified to testify in principle; she does not, however, judge in the legal punishments (hudud) or in retaliation (qisas). Her judgment is therefore valid in everything except the hudud and qisas, by consideration of her testimony: the rule of judgment is drawn from the rule of testimony, for both fall under guardianship (wilaya), and whoever is qualified to testify is qualified to judge. She is qualified to testify outside the hudud and qisas, so she is qualified to judge outside them. Her appointment nevertheless remains disapproved, because of the mingling with men it involves, while the command given to them is to keep secluded. The one who appoints her sins, based on the hadith:
Allah will never make a people succeed who entrust their affairs to a woman.Narrated by al-Bukhari (1463)
When she has judged between two litigants and her judgment accords with the religion of Allah, it is enforced. If she has decided a legal punishment (hadd) or a retaliation (qawad), the matter is brought before another judge who holds her judgment valid and confirms it: no one else has the power to annul it.
Imam Ibn al-Humam elaborates: if a woman is appointed, the appointer thereby sinning, or if two litigants take her as arbitrator and she judges in accordance with the religion of Allah, does her judgment take effect or not? The proof does not allow rejecting it once it is established that it accords with what Allah has revealed, unless one admits a revealed ruling that removes her legal capacity. Now the Revelation mentions, on her part, only a deficiency of intellect, which, as is known, does not go so far as to remove her capacity entirely: she is fit to testify, to supervise endowments and to act as guardian of orphans. This deficiency is relative and attributed to the gender; it can therefore vary from one individual to another. Did they not state expressly, in support of our position, that "the man is better than the woman", even though some women may be better than some men? It is because of this innate deficiency that the Prophet (may Allah's peace and blessings be upon him) attributed the lack of success to whoever appoints women: the hadith thus addresses the appointer and the women in their state of deficiency, and this is correct. But the question remains: if she is appointed and judges rightly, why should that rightful judgment be annulled? ("Sharh Fath al-Qadir", 7/298; see "Bada'i' al-Sana'i'", 7/3; "al-Hidaya", 3/107; "al-Ikhtiyar", 2/100; "al-Jawhara al-Nayra", 6/209; "al-Lubab", 2/485; "Majma' al-Anhur", 3/234; "Hashiyat Ibn Abidin", 5/441).
The majority of jurists, namely the Malikis, the Shafi'is and the Hanbalis, hold that appointing a woman to judgeship is not permitted, and rely on the following proofs.
First, Allah's saying:
"Men are in charge of women, because Allah has given the one more than the other."
Surah An-Nisa, 34
This means, in intellect and judgment: women therefore cannot stand above men.
Then the Prophet's saying (may Allah's peace and blessings be upon him): "Never will a people succeed who entrust their affairs to a woman." The opposite of success (falah) is corruption (fasad): the report implies that, if she is appointed to judgeship, the affairs of those who appointed her become corrupt.
Allah moreover pointed out the error and forgetfulness of women in testimony, saying:
"...lest the one should err and the other remind her."
Surah Al-Baqara, 282
The other arguments of the jurists:
However, Ibn al-Qasim among the Malikis, as reported by Ibn Abi Maryam, a position also held by al-Hasan al-Basri, Ibn Hazm and Ibn Jarir al-Tabari, holds that the appointment of a woman to judgeship is valid absolutely, in the hudud and otherwise. It is also said that Ibn al-Qasim's view matches Abu Hanifa's: permitted outside the hudud. Their argument: the analogy of judgment with legal consultation (fatwa); just as a woman may be a mufti, she may be a judge ("Mawahib al-Jalil", 8/52; "Tahrir al-Mukhtasar", 5/53; "al-Mughni", 10/92). Al-Mawardi writes for his part that Ibn Jarir al-Tabari went to excess by permitting the woman's judgment in all rulings, and that no account is taken of a statement contradicted by consensus ("al-Ahkam al-Sultaniyya", p. 110).
Imam Ibn Rushd summarizes: they differed on the condition of maleness. The majority set it as a condition of the validity of the judgment. Abu Hanifa said a woman may be a judge in financial matters. Al-Tabari said she may be a judge absolutely, in everything. Abd al-Wahhab reports that he knows of no disagreement among them on the condition of freedom: those who reject the woman's judgment likened it to the judgment of the greater imamate and drew it close to that of the slave, because of the diminution of her inviolability; those who permit her judgment in financial matters did so by analogy with the validity of her testimony in that field; those who hold her judgment enforceable in everything rely on the principle that whoever is capable of deciding between people has a valid judgment, except what consensus has specified, namely the greater imamate ("Bidayat al-Mujtahid", 2/344).
The Shafi'i imam al-Ramli was asked: does the judgment of the woman and the disbeliever, if they are appointed by force, take effect, as his statement in "Sharh al-Rawd" indicates ("that is what the author's words require, in origin"), and as "al-Manhaj" requires concerning the woman, which he declared explicitly in his commentary on the authority of the fatwas of Ibn Abd al-Salam; or does neither of them take effect, as al-Adhra'i and others said ("that is the apparent"), and as he specified in "al-Manhaj" with the condition of being Muslim? He answered: the judgment of the woman takes effect, as Ibn Abd al-Salam decreed, but not that of the disbeliever, because of the evident difference between them and Allah's saying:
"And never will Allah give the disbelievers a way over the believers."
Surah An-Nisa, 141
Al-Ghazali had said in "al-Wasit" that the meeting of all these conditions is impossible in our era, the era being devoid of the independent mujtahid; the way is therefore to enforce the judgment of everyone appointed by a sultan holding power, even if ignorant or a sinner, so that the interests of the people are not suspended. Ibn al-Salah noted in "Mushkil al-Wasit" that this reasoning explains the umma's consensus on enforcing the judgments of the oppressive caliphs and of those they appointed; but it is objected that, if the sultan appoints a disbelieving judge, his judgments do not take effect, even given necessity. Ibn Yunus nevertheless says in "Sharh al-Wajiz": the apparent position is that Islam is a condition in the one holding power; it happens that power lies, in some lands, with the disbelievers: if such a disbelieving sovereign appoints a Muslim to judgeship, is it valid? The apparent being that rulings must not be suspended. Ibn Abd al-Salam says for his part: its enforcement is apparent ("Fatawa al-Ramli", 1/595).
The jurists differ: is justice a condition, so that appointing a manifest sinner (fasiq) is invalid; or is it a condition of perfection and not of validity, so that appointing the fasiq is valid and his judgment enforced, so long as he does not overstep the limit of the Revelation?
The majority of jurists, Malikis, Shafi'is and Hanbalis, set justice as a condition. Justice is: truthful speech, manifest trustworthiness, chastity regarding forbidden things, shunning sin and staying far from suspicion, being safe to deal with both in contentment and in anger, and possessing a sense of honor (muru'a) like the one required of him, in his religion and in his worldly life. When these qualities are complete in him, that is the justice which makes his testimony acceptable and his guardianship valid; if one of them breaks, he is barred from testimony and office: he is no longer listened to and his judgment is not enforced.
It is therefore not permitted to appoint a fasiq; and if one appoints him while he is just, then he sins, his appointment lapses, by Allah's saying:
"O you who believe! If a rebellious evil person comes to you with a news, verify it."
Surah Al-Hujurat, 6
Allah has indeed forbidden accepting his word, all the more enforcing his word. The other arguments:
There remains the question whether his judgment is enforced when it accords with the truth. Al-Qadi Iyad says: regarding the fasiq there is disagreement among our associates: is his judgment rejected even if it accords with the truth, which is the sound view, or does it stand if it accords with the truth and its meaning? ("Tabsirat al-Hukkam", 1/21). Imam al-Qarafi, however, reversed this view: the sound position is the enforcement of the fasiq's judgment if it accords with the truth; it is also said that it is rejected ("al-Dhakhira", 10/19). The Shafi'i school, as al-Mawardi and others state, holds that his judgment is not enforced and his appointment is not valid ("al-Hawi al-Kabir", 16/158-159; "al-Ahkam al-Sultaniyya", p. 73). Imam al-Nawawi reports, however, that it is said in "al-Wasit" that the meeting of these conditions is impossible in our era, the era being devoid of the independent mujtahid; the way is to enforce the judgment of everyone appointed by a sultan holding power, even if ignorant or a sinner, so that the interests of the people are not suspended; this is supported by the fact that we enforce the judgment of the rebels' judge out of such necessity, and it is a good position ("Rawdat al-Talibin", 7/236).
The Hanafis, for their part, hold that justice is not a condition of the validity of judicial appointment but a condition of perfection: the early generations indeed validated the judgment of whoever prevailed among the rulers and was unjust; had it been invalid, they would not have done so. A fasiq may therefore be appointed, and his judgments are enforced so long as he does not overstep the limit of the Revelation, for he is qualified to testify and therefore qualified to judge. But he should not be appointed: the appointer sins, for judgment is an immense trust, a trust over property, bodies and lives, which none can honor but one whose piety is complete and whose fear of Allah is perfect. It nonetheless remains that, if he is appointed, the appointment is permissible in itself and he becomes a judge: his corruption is a flaw with respect to others; it does not prevent the validity of his appointment in itself.
If he is appointed while just, then sins, he deserves removal but is not removed by that very fact: this is the position adopted by most of the masters. The sultan must remove him; and if the sultan stipulated that his corruption would entail his removal, he is removed ("Bada'i' al-Sana'i'", 7/3; "al-Fatawa al-Hindiyya", 3/307; "al-Durr al-Mukhtar", 5/356). It is stated in "al-Durr al-Mukhtar": "the fasiq is qualified for judgeship: he is qualified, but he is not appointed, obligatorily; the one who appoints him sins, like the one who accepts his testimony; rulings are issued on this basis." He qualified it in "al-Qa'idiyya": if his truthfulness preponderates in one's estimation, he may be kept in office. He excepted the fasiq who possesses standing and a sense of honor: his testimony must then be accepted, according to "al-Bazzaziyya". It is said in "al-Nahr": in that case, the one who appoints him to judgeship does not sin either, unless a distinction is made between the two. Ibn Abidin comments: the explanation of corruption and justice in testimonies will come later; by this phrase the author was explicit in order to dispel the surmise of those who say that the fasiq is not qualified for judgeship, so that his judgment is not valid, for his corruption forbids trusting him: that is the view of the Three [companions of Abu Hanifa], also chosen by al-Tahawi ("Hashiyat Ibn Abidin ala al-Durr al-Mukhtar", 5/355-356).
Al-Ayni adds that it would be fitting, especially in our era, that a fatwa be issued on this point. The answer: were it taken into account, the door of judgeship would close, especially in our era; that is why the position followed by the author is the sounder, as in "al-Khulasa", and it is the soundest of the views, as in "al-Imadiyya". It is said in "al-Fath": the way is to enforce the judgment of everyone appointed by a sultan holding power, even if ignorant and a sinner; that is the apparent of our school; he then judges by the fatwa of another. As for the phrase "but he is not appointed, obligatorily", it is said in "al-Bahr": elsewhere the author mentioned the preference: it is better that his testimony not be accepted; if it is, it is permissible. And in "al-Fath": the indication of the proof is that it is not lawful for him to judge thereby; if he judges, it is valid and takes effect, but he incurs sin ("Hashiyat Ibn Abidin ala al-Durr al-Mukhtar", 5/355-356).
The jurists differ: must the judge be a mujtahid, knowing the lawful and the unlawful and all the rulings, or may one appoint someone who is neither a scholar nor a mujtahid?
The Hanafis do not set ijtihad as a condition, though it is recommended: when a case occurs, it must be sought in the Book, then in the Sunna, then in consensus; if it is found in none of these three, opinion and ijtihad are resorted to. The judge must know the Sunna and the hadiths, distinguish the abrogating from the abrogated, the general from the specific, and know what the Muslims have agreed upon. Ijtihad is a condition of preference, not of validity, as shown by the statement of Ali (may Allah be pleased with him):
The Messenger of Allah (may Allah's peace and blessings be upon him) sent me to Yemen as a judge. I said: O Messenger of Allah, you send me while I am young and have no knowledge of judgment. He said: Allah will guide your heart and make firm your tongue. When the two litigants sit before you, do not judge until you have heard from the second as you heard from the first; it is then more fitting that the judgment become clear to you. He said: I never ceased to be a judge, or: I never doubted a judgment after that.Hasan hadith, narrated by Ahmad (636), Abu Dawud (3584) and Ibn Hibban in his "Sahih" (5065)
The essential is judgment itself, that is, restoring the right to its owner, which can be done by returning to the fatwa of another scholar. But it is not fitting to appoint one ignorant of the rulings: the ignorant man corrupts more than he reforms, and judges falsehood unawares. If he is appointed, however, it is valid: he can judge by the right thanks to another's knowledge, by consulting the jurists. His appointment is therefore permissible in itself, flawed on account of others; and what is flawed on account of others is fit for judgment like what is lawful, so that his judgments that do not overstep the limit of the Revelation are enforced, just as the flawed sale retains, like the valid sale, the right to judgment ("Bada'i' al-Sana'i'", 7/3; "al-Fatawa al-Hindiyya", 3/307).
The majority of jurists, Malikis, Shafi'is and Hanbalis, require that the judge be of the people of ijtihad, knowing the Book, the Sunna, consensus, disagreement, analogy and the Arabic tongue. Their Quranic proofs:
"Say: Are those who know equal to those who do not know?"
Surah Az-Zumar, 9
This statement forbids equalizing in two ways, and its scope is general, applying to judgment and to everything else; moreover, it is a word of rebuke that carries the force of a command.
"...and that you judge among them by what Allah has revealed."
Surah Al-Ma'ida, 49
Now taqlid is not of what Allah has revealed.
"So judge among men with truth."
Surah Sad, 26
Now the imitator does not know, by his imitation, truth from falsehood.
"...that you may judge among men by what Allah has shown you."
Surah An-Nisa, 105
This implies ijtihad. And He said:
"If you differ in anything among yourselves, refer it to Allah and the Messenger."
Surah An-Nisa, 59
The decisive argument is then the hadith of Burayda (may Allah be pleased with him):
Judges are three: two in the Fire and one in Paradise. The man who judged without the truth while knowing it is in the Fire; the judge who did not know and destroyed the rights of people is in the Fire; and the judge who judged by the truth is in Paradise.Sahih hadith, narrated by Abu Dawud (3573), at-Tirmidhi (1322) and Ibn Majah (2315)
The ignorant man, indeed, judges upon ignorance. And from Amr ibn al-As:
When the judge judges, strives and reaches the right conclusion, he has two rewards; if he judges, strives and errs, he has one reward.Narrated by al-Bukhari (6919) and Muslim (1716)
All this requires that ijtihad be among the attributes of the ruler. Taqlid is not a path to knowledge; it is permitted to the layman only out of necessity, and there is no necessity for the ruler to imitate another. Judgment is more binding than fatwa, since the mufti's fatwa does not bind the questioner: if a mufti may not be a layman, the judge may not be one all the more. If it is objected that the mufti may report what he heard, we answer: yes, but he is then not a mufti, he is an informer; he must report from a specific man of the people of ijtihad, so that it is his report that is followed, not his fatwa, which departs from his established knowledge, unlike judgment ("al-Ishraf ala Nukat Masa'il al-Khilaf", 5/7 and 5/15; "al-Taj wa-l-Iklil", 5/52; "al-Mukhtasar al-Fiqhi", 13/246-247; "Mawahib al-Jalil", 8/52; "Tahrir al-Mukhtasar", 5/53; "al-Sharh al-Kabir" with the Hashiya of al-Dasuqi, 6/3; "al-Hawi al-Kabir", 16/160; "al-Bayan", 13/19-20; "Rawdat al-Talibin", 7/233-234; "al-Najm al-Wahhaj", 10/146; "Mughni al-Muhtaj", 6/289; "al-Mughni", 10/93; "Kashshaf al-Qina'", 6/374; "Sharh Muntaha al-Iradat", 6/476; "Manar al-Sabil", 3/455).
Al-Qarafi specifies: if the judge is a mujtahid, it is not permitted to him to judge or rule except by the view he holds preponderant; if he is a muqallid, he may judge by the famous view of his school and give fatwa by it, even if it is not preponderant with him, imitating his imam in the preponderance of the view he applies. As for following desire in judgment and fatwa, it is forbidden by consensus. Ibn Shas adds: the appointment of a muqallid is not valid where a scholar is found; if he is appointed, he is unjust and a transgressor: he has sat in another's seat and worn a robe not his own without deserving it. Ibn Abd al-Salam says: it is not fitting, in our era, to appoint a muqallid without the ability to weigh between views, for such is not nonexistent even if few; as for the rank of ijtihad, it has vanished in the Maghreb.
Al-Maziri discussed this question at length. The scholars of the past debated it while knowledge was abundant and widespread and most people devoted themselves to derivation and the discussion of the schools. In his era, there no longer existed in the whole vast realm a mufti-examiner who had acquired the instrument of ijtihad, plumbed the principles of fiqh, mastered the tongue, the Sunnas and the rulings of the Quran, been able to interpret what must be interpreted, weigh conflicting indications, prefer one apparent reading to another, know the effective causes, their limits, their types and their methods of extraction, and weigh those causes against one another. That quality was lacking, in his time, in all the lands of the Maghreb, all the more for one aspiring to judgeship. Preventing the muqallid from access to judgeship in that era, he said, would amount to suspending the rulings and casting people into disorder, discord and quarrels, which has no way in the Revelation. But the states of muqallids differ: the holders of power have sometimes appointed a layman because of his wealth, labeling him with the name of justice and the title of dignity, though he lacks specialization, the company of scholars, and the pursuit of what would remove him from foolishness and ignorance and join him to the class of the one who understands what the litigants say before him. Such a man must not be appointed to judgeship nor be trusted with it. Al-Maziri died in the year 536.
Ibn Rashid reports from some that they permitted appointing the ignorant man, holding his scholarship recommended, neither a condition of validity nor a cause of removal: an odd view, far from the right; the judge is, of all men, the most in need of knowledge. Ibn Rashid objects: it cannot be said that he consults the scholars and judges by what they agree upon, for he is commanded to consult even if a jurist; when they differ, he must weigh their differences and aim at their best views; if he is ignorant, confusion seizes him and he knows not what to take. It happens that the ignorant man is appointed over a land without a jurist and judges by his desire, as is usual in our lands and our era: knowledge has vanished, ignorance has thrived, the ignorant have taken the lead and the scholars have been cast aside: to Allah we belong and to Him is the return ("Tabsirat al-Hukkam", 1/21).
Imam Ibn Hubayra reports their agreement: one who is not of the people of ijtihad may not take judgeship, except Abu Hanifa, who permitted it; and when the imam or his deputy dies, the appointment lapses according to the famous view. The truth on this question is that the statement of those who forbade appointing a judge who was not a mujtahid referred to the era preceding the stabilization of the four schools upon which the community agrees, each of them being fit to be followed since it rests on the command of the Messenger of Allah (may Allah's peace and blessings be upon him) and his Sunna. The judge of today, even if not a mujtahid, even if he has not pursued the search for hadith nor mastered its methods, nor possessed the language of the Revelation beyond his needs, and the other conditions of ijtihad: that is because others completed that work for him: the truth was confined to the views of those imams, the sciences were recorded, and what became clear therein was attained. The judge therefore rules according to what he takes from them or from one of them: he is assimilated to one whose ijtihad leads to a view they stated. If he departs from their disagreements aiming at the places of mastery as far as he can, he acts with certainty upon the most appropriate; if he aims, in the places of disagreement, at the view of the majority rather than that of a single one, he has certainty, and it is better and stronger, whether he follows the view of a single one or not.
It is nonetheless disapproved of him to confine himself to a single school: if he has read only one madhhab, if he grew up in a town where only one school was known, or if his master belonged to a single jurist, to the point that if two litigants come before him with a dispute that concerns the three jurists, he would render a decision tantamount to delegation without the litigants' consent, while the judge is a Hanafi and knows that Malik, Ahmad and al-Shafi'i agree on the validity of that delegation, which Abu Hanifa alone did not permit: he then abandons the agreement of the three for Abu Hanifa's view, on the mere ground that the latter said "jurist" generally among the following jurists, without a proof established before him nor the instrument of ijtihad, on the assumption that Abu Hanifa's view is preferable to the group's agreement. One fears, for such a man, that he may be followed away from Allah, for he followed his desire therein; or that he may not be among those who listen to speech and follow the best of it. Likewise, if the judge belongs to Malik's school and is petitioned over the price of the dog, though he knows that all the jurists ruled it impure, he veers to his school. Likewise, if the judge is Shafi'i and two litigants dispute before him over the deliberate omission of fixing the price: one says: this man prevented me from selling a suckling female and ruined it for me; the other says: I only prevented him from selling carrion; he then judges against him by his school, though he knows that the three jurists differ from him. Likewise, if the judge follows Imam Ahmad and two litigants dispute before him: one says: property is owed by me; the other says: it was indeed owed to him and I discharged it; he then judges him absolved by the oath of innocence despite the acknowledgment, though he knows that the three jurists differ from him. These examples and their like show that following the majority is, in my view, nearest to salvation and weightier in practice. This implies that the judicial offices of our era are valid offices, and that those who hold them guard a frontier of Islam in the manner of a collective obligation (fard kifaya). We have passed over this view without mentioning it, walking the path of feigned silence that the jurists tread.
Conclusion of the previous discussion: if one required the judge to be originally a mujtahid, then demanded of him conditions of ijtihad not found in judges, one would fall into the impossible and the deficient: it would be suspending the rulings and closing the door of judgment, so that no right would be enforced, no correspondence written, no proof established. That is not sound. It becomes clear that the correct view is that the rulers of today exercise a valid, enforceable governance, and that their appointment is permitted by the Revelation ("al-Ifsah", 2/395-399; "Jawahir al-Uqud", 2/289).
The scholars agree: the judge must be sound in his senses, hearing, seeing and speaking; the loss of these senses prevents conducting judgment between the litigants. Al-Qadi Iyad says: the condition of hearing and speech was never disputed by the scholars, for these two incapacities make understanding mostly impossible. The scholars differed when these two defects occur after appointment: is the office annulled and its holder removed, or not? The combination of both defects with judgeship is improbable, and one rarely finds a mute who is not also deaf ("Tabsirat al-Hukkam", 1/23; see "Bada'i' al-Sana'i'", 7/3; "al-Mukhtasar al-Fiqhi", 13/246; "al-Bayan", 13/21; "al-Najm al-Wahhaj", 10/144-145; "Mughni al-Muhtaj", 6/288; "Kashshaf al-Qina'", 6/378; "Sharh Muntaha al-Iradat", 6/475-476).
Ibn Qudama says: the perfection of constitution requires that he be speaking, hearing, seeing. The mute cannot pronounce the judgment, and people do not all understand his gestures; the deaf does not hear the litigants' words; the blind cannot distinguish the claimant from the defendant, the one acquitted from the one acquitting, the witness from the one on whose behalf testimony is given. Some associates of al-Shafi'i allow the blind man, because Shu'ayb was blind, and differ over the mute whose gestures are understood. Our proof: these senses bear on testimony; their loss prevents judgeship as it does hearing, for the rank of testimony is below the rank of judgment: the witness testifies in simple matters he can fully grasp, whereas the judge's office is general and he judges the people's cases in general. If his testimony is not accepted, judgeship is all the more not. As for Shu'ayb, we do not concede the example: nothing establishes that he was blind; and even if that were established, it would not apply here, for those who believed with him were few and perhaps had no need of judgment between them, given their small number and their equality: it is thus not an argument in our question ("al-Mughni", 10/92-93).
Al-Mawardi details the perfection of constitution in three attributes: sight, hearing, the tongue. The blind man may not be appointed; if he becomes blind after appointment, his office lapses, for he cannot distinguish the claimant from the defendant. Malik permitted appointing the blind, as he permitted his testimony: if there is in his eye a cataract letting him see by day but not by night, appointment is permitted; if he perceives shapes without recognizing forms, it is not; if he recognizes forms up close but not from afar, it is. The deaf man may not be appointed, and the onset of deafness lapses his office, for deafness prevents him from distinguishing acknowledgment from denial; the deafness that prevents this is not understanding sounds even when loud; the heavy ear that understands loud sounds but not faint ones allows appointment, though that of the hearing man is preferable. The mute may not be appointed, and the onset of muteness lapses his office, for he is unable to enforce judgments and secure rights. Abu al-Abbas ibn Surayj permitted his office if his gestures are understood, as he permitted his testimony; but according to the majority of our associates he is excluded from both. If his tongue has only a stammer, a lisp, a repetition or an impediment that does not prevent understanding speech, appointment is valid: it is a deficiency that does not hinder the understanding of speech; and even if it clouded speech, the impediment of the tongue of the prophet Musa did not hinder the validity of his mission. As for the integrity of the limbs, it is not taken into account: one may appoint a paralytic or a man afflicted with a continual discharge, though freedom from defects is more majestic for holders of offices ("al-Hawi al-Kabir", 16/155).
The report attributed to Malik permitting the appointment of the blind man is not sound. Ibn Arafa reports that al-Baji said there is no disagreement on barring the blind man from appointment. Ibn Zarqun reports that al-Mawardi mentioned its permissibility. Iyad says: this report is not sound from Malik. Al-Mutti'i cites al-Mawardi's report without criticizing it and adds that Abu Ubayd reports, from Ibn Abi Maryam, that Malik barred his testimony. Al-Maziri specifies: it is related from Muhammad [Ibn al-Qasim] that it is not fitting to appoint a blind man, nor a man punished for slander, nor a slave working for his price, nor a mukatab; do you not see that the testimony of any of these is not permitted? Judgment is greater than testimony ("al-Mukhtasar al-Fiqhi", 13/248). Al-Dardir says: the ruler must have sight, speech and hearing; it is not permitted to appoint a blind, a mute or a deaf man. If one of them is nonetheless appointed, his judgment takes effect, the conjunction meaning "or": the judgment is not annulled, for the absence of these abilities is neither a condition of the validity of his office at the outset nor in continuance; it is an obligation, not a condition, at the outset and in continuance: hence the phrase "his removal becomes obligatory" if one of these defects occurs. Two things are deduced: the impermissibility of his office at the outset and in continuance, and the validity of his judgment after the defect occurs ("al-Sharh al-Kabir" with the Hashiya of al-Dasuqi, 6/5; "al-Taj wa-l-Iklil", 5/54; "Tahrir al-Mukhtasar", 5/54).
The jurists agree on the principle: the one invested with judgeship must be the best of the candidates present, the one in whom the conditions of judgment are complete. When an absolute mujtahid exists, it is not permitted, among the Malikis, to appoint a muqallid: his appointment is void; this is the view followed by many Malikis. The second view, which is the famous position of the school, validates it. In the absence of an absolute mujtahid, appointing the less qualified despite the more qualified is valid according to the majority, Malikis, Shafi'is and Hanbalis, and this is what the Hanafis' words require: the surplus of excellence is an excess in choice, not counted among the conditions of deserving; and the less qualified, among the Companions and the early generations, used to give rulings alongside the more qualified, with fame and repetition, without anyone objecting: that was a consensus ("Mawahib al-Jalil", 8/54; "al-Sharh al-Kabir" with the Hashiya of al-Dasuqi, 6/3-4; "al-Hawi al-Kabir", 16/161; "al-Ahkam al-Sultaniyya", p. 8; "al-Insaf", 11/193; "Kashshaf al-Qina'", 6/388).
As for arbitration entrusted to one fit for judgeship, the jurists of the four schools agree: if two men submit a case to a man whom they choose and with whom they are satisfied, and he is fit for judgeship, his judgment between them is permitted, by Allah's saying: "Then send an arbitrator from his family and an arbitrator from her family" (Surah An-Nisa, 35), and by the arbitration carried out by the Messenger of Allah (may Allah's peace and blessings be upon him) with Sa'd ibn Muadh concerning the Banu Qurayza, over their captives and the killing of their fighters, as related in the Sahih.
Yazid ibn al-Miqdam ibn Shurayh reports from his father, from his grandfather Shurayh, from his father Hani', that when he came to the Messenger of Allah (may Allah's peace and blessings be upon him) with his people, he heard them calling him Abu al-Hakam. The Messenger of Allah called him and said:
Allah is the Judge, and to Him belongs the judgment. Why are you called Abu al-Hakam? He replied: when my people differ in a matter, they come to me and I judge between them, and both parties are satisfied. The Messenger of Allah said: How good this is! What children do you have? He said: Shurayh, Muslim and Abdallah. He said: Who is the eldest? He answered: Shurayh. He said: You are then Abu Shurayh.Sahih hadith, narrated by Abu Dawud (4955) and an-Nasa'i (5387)
It is also reported:
Whoever judges between two people who have accepted him by mutual consent and is not just between them is cursed.Marfu' report with contested transmission
Ibn al-Mulaqqin says in "al-Badr al-Munir" (9/555) that this hadith cannot serve as proof, for it comes from the copy of Ibn Jarad, a copy deemed false, which Ibn al-Jawzi once described as forged, harshly attacking al-Khatib al-Hafiz when he relied on a hadith from that copy. Had the arbitrator's judgment not been binding on the parties, this condemnation would not have been deserved.
It is related that a dispute arose between Umar and Ubayy ibn Ka'b over palm trees; they took Zayd ibn Thabit as arbitrator. They came to him and Zayd came out, saying to Umar: why did you not send for me, that I come to you, O Commander of the Believers? Umar answered: the arbitrator is visited in his own home. They entered his house; he set a cushion for Umar, who said: this is the first of your injustices. The oath lay upon Umar. Zayd said to Ubayy: will you not release the Commander of the Believers from his oath? Ubayy answered: we release the Commander of the Believers and affirm his truthfulness. This account is weak: Ali ibn al-Ja'd related it in his "Musnad" (1802), and al-Bayhaqi followed him in "al-Kubra" (10/144), with the note that al-Sha'bi never met Umar.
First, on the parties' ability to withdraw from their arbitration after the beginning of the judgment: the Malikis in one view, the Shafi'is in the school and the Hanbalis in one way hold that the arbitrator retains his right, for their consent was no longer present at the time of judgment, as if one of the parties had withdrawn before he undertook to judge. The Malikis in another view, favored by a group such as Ibn Farhun, the Shafi'is in one way and the Hanbalis in the school hold that he has no such right: were it allowed him, each of the two, as soon as he saw from the arbitrator what displeased him, would withdraw his consent, which would nullify the intended purpose ("Sharh Mukhtasar al-Tahawi" by al-Jassas, 8/66 and 8/69; "al-Jawhara al-Nayra", 6/215 and 6/218; "al-Lubab", 2/490 and 2/492; "Mukhtasar al-Wiqaya", 2/267-268; "al-Bahr al-Ra'iq", 7/26; "Majma' al-Anhur", 3/241; "al-Ishraf ala Nukat Masa'il al-Khilaf", 5/34-35; "al-Shamil", 2/836; "Ahkam al-Quran", 2/125-126; "Tabsirat al-Hukkam", 1/51; "al-Taj wa-l-Iklil", 5/62; "Sharh Mukhtasar Khalil", 7/145; "al-Sharh al-Kabir" with the Hashiya of al-Dasuqi, 6/12-13; "Tahrir al-Mukhtasar", 5/60-61; "al-Bayan", 13/24; "al-Najm al-Wahhaj", 10/155-157; "Mughni al-Muhtaj", 6/293-294; "al-Mughni", 10/137; "Kashshaf al-Qina'", 6/391; "Manar al-Sabil", 3/456).
The scholars agree: arbitration is not permitted in Allah's rights, such as the punishment of fornication and of theft; those rights belong to the imam or the ruler, not to the arbitrator. The jurists then differ on what the arbitrator may judge: may he rule on everything, including blood and retaliation, with his judgment enforced, or only in property? Each school details the matter.
The Hanafis: arbitration is not valid in the hudud and qisas, for the parties do not own the permission of their own blood; the arbitrator's judgment there depends on the validity of their arbitration. It is also said: his judgment is like the settlement (sulh) where recovery by settlement is permitted; recovering the punishment and retaliation is not legitimate by settlement. Arbitration is valid in the rest of disputed matters established by the Book, the Sunna and consensus, by the first way, except the punishment and retaliation. If the parties refer a case of erroneous killing to him and he rules the blood price against the clan ('aqila), it does not take effect: the arbitrator's judgment takes effect neither against the parties nor, here, against the clan, which did not consent to his judgment; just as if the parties referred a defect of sale and he ordered rescission: the seller cannot return the thing against his own seller, unless the first and the second seller and the buyer consent to his arbitration ("Sharh Mukhtasar al-Tahawi" by al-Jassas, 8/66-69; "Mukhtasar al-Wiqaya", 2/267-268; "al-Bahr al-Ra'iq", 7/26; "Majma' al-Anhur", 3/241; "al-Jawhara al-Nayra", 6/215-218; "al-Lubab", 2/490-492).
The Malikis: arbitration is permitted in everything except a legal punishment (hadd), li'an, killing, clientship (wala'), divorce and manumission; for a right of another attaches to them, Allah's or a human being's. In li'an there is a right of the child to the establishment of lineage; likewise for lineage and clientship; in divorce and manumission there is Allah's right, since the irrevocably divorced woman cannot remain in the marital bond, nor the slave return to slavery.
If the arbitrator judges in what arbitration is not permitted, his judgment stands if correct; neither of the parties nor another judge may annul it. But if he enforced the judgment by the punishment or the killing, he is disciplined for his audacity, leaving enforcement to the imam; otherwise he is not disciplined, only reproached; and he is not disciplined over the one entrusted to him. Thus, if he rules the killing and then pardons the condemned, he undergoes no discipline ("Ahkam al-Quran", 2/125-126; "al-Taj wa-l-Iklil", 5/63; "Sharh Mukhtasar Khalil", 7/145-146; "al-Sharh al-Kabir" with the Hashiya of al-Dasuqi, 6/13-14; "Tahrir al-Mukhtasar", 5/60-61).
The Shafi'is, in the school: the arbitrator's judgment is valid in all rulings without restriction, in property as in retaliation, like the judgment of the judge appointed by the imam: if his judgment is valid in property, it is valid in the rest, like the one appointed by the imam. As for arbitration in Allah's punishments, it is not attainable, for there is no claimant to establish it. In another Shafi'i view, shared by al-Qadi [Iyad] among the Hanbalis, arbitration is permitted in all judgments except four: marriage, li'an, the punishment of slander and retaliation; for the Revelation was severe regarding them: none may undertake them but the imam or his appointee ("al-Muhadhdhab", 2/291; "al-Bayan", 13/24; "al-Najm al-Wahhaj", 10/156; "Mughni al-Muhtaj", 6/293-294; "al-Mughni", 10/137).
The Hanbalis, in the school: if two persons submit a case to a man to judge between them, his judgment takes effect in property, retaliation, the punishment, marriage, li'an and the rest, even with a judge present: he is like the ruler of the imam; the one who wrote to the arbitrator must accept his judgment and enforce it, for he is a ruler of enforceable judgments, whose ruling must be accepted like that of the imam's ruler ("al-Mughni", 10/137; "Kashshaf al-Qina'", 6/390-391; "Sharh Muntaha al-Iradat", 6/481).
The generality of scholars stated, with varying wording, that when a case comes before the judge, he rules by what is in the Book of Allah; he must know what the Book contains of the abrogating and the abrogated, and distinguish the decisive explicit from the ambiguous that admits divergent interpretations.
The Hanafis: if he finds nothing in the Book of Allah, he rules by what has come from the Messenger of Allah (may Allah's peace and blessings be upon him); he must know the abrogating and the abrogated among the reports; if the reports differ, he takes the more fitting and his ijtihad inclines to it. He must know the mutawatir and the famous, and what belongs to solitary reports; he must know the ranks of the transmitters: some are known for jurisprudence and justice, like the rightly guided caliphs and the Companions named Abdallah; others for long companionship and sound retention; taking the report of one known for jurisprudence is better than that of one not known for it, likewise the report of one known for long companionship. If it is a novel case with no Sunna of the Messenger of Allah, he rules by what the Companions agreed upon, for acting upon their consensus is obligatory; if they differ, he strives and prefers some of their views by his ijtihad if he is of the people of ijtihad; he is not permitted to oppose them all by inventing a third view, for despite their disagreement they agreed that everything besides their two views is void. Al-Khassaf admitted that, because their difference indicates that ijtihad has room there; the sound view is the first [which forbids it].
If the Companions agreed on a ruling and one of the Successors contradicted them: if he did not live to see the era of the Companions, his opposition is not taken into account; even if a judge ruled by his view against their consensus, it would be void. If he lived in their era, vied with them in fatwa and they permitted him ijtihad, like Shurayh and al-Sha'bi, consensus is not concluded by his opposition. If the case is related only from some of the Successors, Abu Hanifa has two positions: according to one, he does not follow them, and that is the apparent of the school; according to the report of the "Nawadir", whoever among them gave rulings in the era of the Companions and was permitted ijtihad, like Shurayh, Masruq ibn al-Ajda' and al-Hasan, he follows him. If neither level yields a view: if he is of the people of ijtihad, he proceeds by analogy, strives by his opinion, seeks the correct, then rules. If he is not, he consults and takes the mufti's fatwa, rules by nothing without knowledge, and is not ashamed to ask ("Mu'in al-Hukkam", p. 26; "al-Fatawa al-Hindiyya", 3/311-312).
The Malikis: what is ruled upon is first the Book of Allah; otherwise the Sunna of His prophet Muhammad, accompanied by practice; if a report is contradicted by practice, he rules by what practice accompanied, which is known from Malik's principle: practice takes precedence over the solitary report, and analogy likewise takes precedence over solitary reports, according to Abu Bakr al-Abhari. If he finds nothing in the Sunna, he examines the Companions' views and rules by their agreement; if they differ, he rules by what practice accompanied; if practice attached to no view, he chooses among their views without opposing them all; it has also been said that he may strive even opposing them all. It is the same for the consensus of the Successors after the Companions and for any consensus concluded in every era until the Day of Resurrection, by Allah's saying:
"And whoever contradicts and opposes the Messenger after the right path has been shown clearly to him, and follows other than the believers' way, We shall keep him in the path he has chosen, and burn him in Hell, what an evil destination."
Surah An-Nisa, 115
And the Messenger of Allah's sayings (may Allah's peace and blessings be upon him): "My umma will never agree upon error" and "The hand of Allah is with the group." Allah having guaranteed the preservation of the group, error and inattention cannot befall them.
If he finds no consensus in the case, he rules according to what examination and ijtihad lead to, by analogy upon the principles, after consulting the scholars: if they agree, he follows their agreement; if they differ, he considers their best views in his eyes; if he sees otherwise than they, he rules by what he sees if he is their peer; otherwise that is not permitted to him. Ibn Habib remarks that this statement is open to objection: the sound position is that, if he is of the people of ijtihad, he rules by what he sees, even if they are more knowledgeable than he, for taqlid is not valid for the mujtahid in what he sees opposed to it, by consensus; taqlid is valid for him only so long as no ruling has become clear to him in the case: such is the view of those who accept taqlid.
There remained the question whether the mujtahid may abandon examination and ijtihad to follow one who examined before him. The mujtahid is the one who knows of the Quran and the Sunna what the rulings relate to, the specific and the general, the concise and the explicit, the abrogating and the abrogated, the mutawatir and the rest of the Sunna, the connected transmitter and the mursal, the state of the transmitters strong or weak, the Arabic tongue in its languages and its grammar, the views of the scholars from the Companions and after them in consensus and disagreement, and analogy with its types. Three views: it is permitted to him; it is not permitted to him; it is not permitted to him unless he fears the case slipping away. If the judge is not of the people of ijtihad, consultation and taqlid are required: if the scholars differ, he rules by the view of the most knowledgeable; it is said by the view of the majority, as related in the Mudawwana concerning the seven jurists; the first is sounder; it is said he may rule by the view of whomever he wills if he seeks correctness without intending desire, and he may be content with a single consultation; if he does so, the best choice is to consult the most knowledgeable; if he consults one lesser than he and follows his view, it is permitted if the latter is of the people of examination and ijtihad.
Ibn Farhun adds: it has preceded, from the statements of al-Qadi Abu Bakr, that the muqallid rules by the fatwa of his master in the very case; if he draws an analogy upon his view, he transgresses. The shaykh Abu Bakr al-Tartushi related from al-Qadi Abu al-Walid al-Baji that the governors of Cordoba, when they appointed a man to judgeship, stipulated in his register that he not depart from Ibn al-Qasim's view as long as he found it. The shaykh Abu Bakr judged that this was great ignorance on their part, for the truth is not in one determined thing. He said that because mujtahids and examiners existed among the judges of that era: he was speaking of the men of his time, being the contemporary of Imam Abu Umar Ibn Abd al-Barr, al-Qadi Abu al-Walid al-Baji, al-Qadi Abu al-Walid Ibn Rushd, al-Qadi Abu Bakr Ibn al-Arabi and al-Qadi Abu Muhammad Ibn Atiyya the exegete, and their peers. That type had vanished in his era, East and West. Just as al-Baji related that of the governors of Cordoba, a similar statement is related from Sahnun: he appointed a man to judgeship who had heard some of the Iraqis' discourse; Sahnun then stipulated that he judge only by the view of the people of Medina and not overstep it. Ibn Rashid says this supports what al-Baji mentioned and what the shaykh Abu Bakr said: how could it be otherwise, since the Malikis, when they submit to him, come so that he judge between them by Malik's school? It has preceded, in the chapter on arbitration, from al-Lakhmi that, if the judge is a mujtahid and the dispute between two Malikis, his judgment takes effect if he does not depart from Malik's school by his ijtihad; if he departs from it, his judgment does not bind them; see the detail there. Al-Maziri mentioned a similar statement ("Tabsirat al-Hukkam", 1/51-52).