Islamic Fiqh > Judgment and testimony > Judgment (qada) and its conditions > May a judge adhere (taqlid) to a specific school?
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
This continuation of the chapter on judges (qada) covers the remaining conditions and attributes of judgment: whether a non-mujtahid judge may adhere to a specific school, the beneficiary of the judgment, the defendant whether present or absent, the judge who rules by his personal knowledge in rights and then in legal punishments, the judgment rendered while angry, the real effect of the governor's ruling, the judge's stipend, and finally judging by other than what Allah has revealed. Each sheet presents the schools' positions, their proofs, the Companions' rulings, and the classical references supporting them.
The Hanbalis say: when a case comes before the judge and its ruling is clear in the Book of Allah, the sunna of His Messenger, consensus (ijma'), or an evident analogy (qiyas), he rules without resorting to the opinion of another, based on the words of the Messenger of Allah (peace and blessings of Allah be upon him) to Mu'adh when he sent him to Yemen: "By what will you judge?" He said: "By the Book of Allah." He said: "And if you do not find it?" He said: "By the sunna of the Messenger of Allah." He said: "And if you do not find it?" He said: "I will strive with my own opinion (ijtihad)." He said: "Praise be to Allah who has guided the messenger of the Messenger of Allah to what pleases the Messenger of Allah." (al-Mughni, 10/100-101)
If he needs ijtihad, it is recommended that he consult, based on the word of Allah:
"And consult them in the matter"
Surah Al-Imran, 159
Through consultation he may notice and recall what he forgot in discussion, especially since encompassing all sciences is difficult, and someone lesser than the judge may hit upon the truth and know the new case; how much more one who equals or surpasses him. Consultation here serves to extract the evidences, and the truth is reached through ijtihad. When a case occurs, he examines the Book of Allah; if he does not find it there, he examines the sunna of His Messenger; if he does not find it, he resorts to analogy by attaching the case to its most similar roots, as mentioned in the hadith of Mu'adh ibn Jabal.
The jurists differed concerning the judge to whom taqlid was assigned and who is not a mujtahid: what does he do in disputed questions? May he restrict himself to a specific school and not depart from it, or not?
The Malikis: the judge who is not a mujtahid must rule according to the preferred view (rajih) of the imam he follows, neither by the view of another nor by the weak view; if he rules by the weak view his judgment is annulled, unless its weakness is not severe and he is qualified for weighing (tarjih) and that view prevailed with him through a sound indicator: then it is not annulled, as when he argues by analogy in the absence of a text while being qualified for it.
The mufti likewise: he may not give a fatwa except by the rajih of his imam's madhhab, neither by another's madhhab nor by the weak view of his own madhhab; he may act on the weak view of his madhhab for himself when necessity is realized; and the mufti may not rule by other than the mashhur because necessity is not established for others as it is for himself. That is why they blocked the means (sadd al-dhari'a) by prohibiting fatwa by other than the mashhur, fearing that necessity might not be established, not because the weak view would never be acted upon should necessity one day be realized; on this basis, the mufti may rule by other than the mashhur for his friend if his necessity is established, since the friend's situation is not hidden from him. Al-Sawi (may Allah have mercy on him) said: "A person may act on the weak view for a matter that requires it; it has been said: rather he follows the view of another if it is preferred in that other's madhhab." (Hashiyat al-Sawi 'ala al-Sharh al-Saghir, 9/297; see al-Sharh al-Kabir with Hashiyat al-Dasuqi, 6/4-5; Sharh Mukhtasar Khalil, 7/140; Tahbir al-Mukhtasar, 5/54)
If it is asked: what is the benefit of mentioning the weak views in their discourse, if it is permitted neither to act nor to rule by them?
This is the relied-upon position of the later Malikis, but many Maliki scholars held other discourses. Ibn Abd al-Salam said: must the muqallid restrict himself to his imam's view? The default is no obligation; the early scholars did not forbid the common people from following a single scholar, nor did they order whoever asked one of them about a question not to ask another; but it is better, for the judge, to adhere to a single path: if he follows an imam, he should not switch to another, for that would lead to suspicion of partiality, and in line with the prohibition of ruling in one case with two different rulings.
Ibn Farhun said: "The muqallid judge, if he finds the mashhur, must not depart from it; al-Mazari reached the degree of ijtihad and never ruled by other than the mashhur, and he lived 83 years: he suffices as a model. Whoever has not grasped the mashhur of the two views or the two narrations may not declare correct and rule by either of them without examination and weighing; Ibn al-Salah said in Adab al-Mufti wa'l-Mustafti: whoever contents himself with his fatwa or knowledge agreeing to a view among views, and acts by whichever view he wants without examination in weighing, is ignorant and has violated consensus."
If one who is not qualified for takhrij and tarjih finds disagreement among the school's imams over the sounder of two views or two ways, he should resort, for weighing, to their qualities that increase trust in their opinions, acting on the view of the most numerous, the most scrupulous and the most knowledgeable; if each has a distinct quality, priority is given to the one more likely to be right, the knowledgeable-scrupulous (al-a'lam al-wari') taking precedence over the scrupulous-knowledgeable; and if two views are found with no one from the school indicating which is sounder, the qualities of their two transmitters or two authors are considered. Ibn Farhun said: this ruling applies to the followers of the four schools and their muqallids.
Then he said: know that the mufti must not be lax in giving fatwa, and whoever is known for that may not be questioned; likewise the ruler, with no difference between mufti and judge except that the mufti informs and the judge binds. Laxity may be not verifying and rushing to fatwa or judgment before fulfilling its due of examination and thought; he may be driven to that by imagining that speed is cleverness and delay a weakness and deficiency: that is ignorance, and it is better for him to delay without erring than to hasten and go astray, leading others astray. It may also be that corrupt aims drive him to follow forbidden or disliked stratagems and to cling to ambiguities, seeking to permit for one whose benefit he intends or to harden against one whose harm he intends. Ibn al-Salah said: whoever does so has held his religion cheap; I ask Allah for pardon and well-being; but if the mufti's intention is sound, seeking a way out with no ambiguity and leading to no harm, to free the questioner from a predicament of an oath or the like, that is good and fine. (Tabsirat al-hukkam, 1/58-59; Manh al-Jalil, 8/264; al-Taj wa'l-Iklil, 5/54; Mawahib al-Jalil, 8/57)
Al-Qarafi said: it behooves not the mufti, when a question contains a strict view and a lenient one, to give the common people the strict view and the holders of authority the lenient one: that borders on wickedness (fusuq), treachery in religion and toying with the Muslims; it is the sign of a heart empty of glorifying Allah, venerating, fearing and being dutiful to Him, busy with play, loving prominence and drawing near to creatures rather than the Creator; we seek Allah's protection from the traits of the heedless; and the judge is like the mufti in this.
Ibn Shas (may Allah have mercy on him) reported that the ustadh Abu Bakr al-Turtushi said: "The imam who adheres to one of the schools, such as that of Malik, al-Shafi'i, Abu Hanifa and others, may appoint to judgeship someone who holds a madhhab contrary to his; for the judge must strive with his own opinion in his rulings, and no Muslim may be compelled, in new cases and rulings, to follow those who ascribe themselves to his madhhab: whoever is Maliki is not required, in his rulings, to resort to Malik's views, and the same applies to all the schools; rather whatever his ijtihad reaches in rulings belongs to him." Then he said: "If he stipulates upon the judge to rule by the madhhab of a specific imam among the imams of the Muslims and no other, the contract is valid and the condition void, whether it agrees with the madhhab of the stipulator or not." He also said: the judge Abu al-Walid informed me: "The rulers of Cordoba, when appointing a man to judgeship, would write in his register the condition of not departing from Ibn al-Qasim's view as long as he found it." The ustadh Abu Bakr said: "This is great ignorance on their part."
Ibn Farhun (may Allah have mercy on him) said: "Sheikh Abu Bakr al-Turtushi said in the introduction of his book called Ta'liqat al-Khilaf: the imam appoints the judge and stipulates that he rule only by the madhhab of a specific imam, Maliki, Shafi'i, Hanafi or Hanbali, saying to him: I appointed you to judgeship on condition that you rule only by the madhhab of Malik, for instance, whether or not it agrees with the madhhab of the sultan who appointed you. There are two types:
The first: stipulating that generally for all judgments: the contract is void and the condition void, whether the condition accompanies the appointment contract or precedes it and the contract then follows. The people of Iraq said: the appointment is valid and the condition void. Our proof: this is a condition contradicting the requirement of the contract, for the contract requires him to rule by the truth that appears to him, and this condition has restricted him to his imam's madhhab even if the truth appears elsewhere.
The second type: the condition specific to one particular judgment, being either a command or a prohibition. If it is a command, such as saying: I appointed you on condition that you take the slave for the free man and the disbeliever against the Muslim; or, as Ibn Abi Jamra said, stipulating that he impose retaliation for a killing without the sword or the like: the contract and the condition are corrupted. If it is a prohibition, it is of two types:
Ibn Abi Jamra said in Iqlid al-Taqlid: "Whoever does not rule except by what his appointer commands him is not a judge in truth; he is in the position of a servant carrying a letter, and ruling beyond what he was commanded is not permitted until he seeks the view of the one who appointed him on that." Ibn Farhun (may Allah have mercy on him) said: "Sheikh Abu Bakr's words concern the mujtahid judge and did not address the muqallid judge as exists in our time." (Iqd al-Jawahir al-Thamina, 3/1005; Tabsirat al-hukkam, 1/20-21)
The Shafi'is said: "The judge rules by his ijtihad if he is a mujtahid, or by the ijtihad of the one he follows if he is a muqallid." Ibn Hajar (may Allah have mercy on him) said: "The import of the two shaykhs' words is that the muqallid does not rule by other than the madhhab of the one he follows." Al-Mawardi and others said: it is permitted; al-Azhari and others reconciled, taking the first statement to refer to one who has not reached the rank of ijtihad within his imam's madhhab, the pure muqallid incapable of examination and weighing, and the second to one who is capable of it. Al-Husayni denied it on the grounds that custom held the muqallid's appointment conditioned on ruling by his imam's madhhab, which is the prevailing orientation whether the person is qualified or not, especially if the appointment contract says: "according to the custom of your predecessor", for no ruling by a muqallid contrary to his imam's madhhab has been recorded; and the statement of a group of the early scholars, "If the imam appoints a man to judgeship on condition that he rule by a specified madhhab, the appointment is void", would then be binding upon a mujtahid judge, or upon a muqallid assigned another imam while his taqlid remains, as is clear; then I saw a commentator deciding this, saying: this is what is practiced, every muqallid is required to act by the madhhab of the one he follows and may not rule contrary to it.
Ibn al-Rif'a narrated from the companions that the muqallid judge, if his ruling is seen to contradict the text of the one he follows, has his judgment annulled; al-Nawawi in the Rawda and al-Subki agreed with him; al-Ghazali said: it is not annulled, and al-Rafi'i followed him in one place. Ibn al-Salah stated explicitly, as mentioned, that the text of the muqallid's imam is for him like the text of the Lawgiver, and al-Nawawi agreed in the Rawda; what al-Rafi'i's words suggest from al-Ghazali (no annulment, since the muqallid may follow whom he wants) was decided against in Jam' al-Jawami'. Al-Azhari said: "Far from it; the sound position is rather to block this door at its root, given the countless corruptions that follow." Another said: "The mufti of the Shafi'i school may not rule by another's madhhab and it has no effect, that is, if he judged by it in arbitration or appointment, as established by Ibn al-Salah; yet if he transfers to another madhhab fulfilling its conditions and studying it thoroughly, ruling by it becomes permitted to him." (Tuhfat al-Muhtaj, 12/101-102; Fath al-Mu'in, 4/216-217)
As for the Hanbalis, they declared explicitly that no restriction to a specific madhhab is permitted in judgeship. Imam Ibn Qudama (may Allah have mercy on him) said: "It is not permitted to appoint someone to judgeship on condition that he rule by a specific madhhab; that is the madhhab of al-Shafi'i and I know of no disagreement in it, because Allah said:"
"O Dawud, We have made you a successor upon the earth, so judge between the people in truth"
Surah Sad, 26
"and the truth is not restricted to one madhhab; the truth may appear to him in other than that madhhab; if he is appointed on this condition, the condition is void, and the invalidity of the appointment has two bases, in accordance with the void conditions in sale." (al-Mughni, 10/136)
Imam al-Mardawi (may Allah have mercy on him) said: "It is not permitted to appoint someone to judgeship on condition that he rule by a specific madhhab; and that is the madhhab of al-Shafi'i (may Allah have mercy on him), and we know of no disagreement." Shaykh Taqi al-Din (may Allah have mercy on him) said: "Whoever obliges the following of a specific imam must be called to repent; if he repents, otherwise he is killed." Then: "Whoever says that one must follow a specific imam is an ignorant man led astray." Then: "Whoever follows an imam then differs from him in some issues because of the strength of the evidence, or because one of the two is more knowledgeable or more pious, has acted well and there is no dispute that this does not harm his justice; in this situation, following whoever possesses these qualities is permitted according to the imams of Islam, indeed obligatory, and Imam Ahmad stated it explicitly." (al-Insaf, 11/169-170; Kashshaf al-Qina', 6/371; Matalib Uli al-Nuha, 6/463)
As for the Hanafis, they said: the judge rules by what is in the Book of Allah; if he does not find it, by the sunna of the Messenger of Allah (peace and blessings of Allah be upon him); if he does not find it, by what has been transmitted from the Companions; if their views differ, he exercises ijtihad in that. When Abu Hanifa, Abu Yusuf and Muhammad (may Allah have mercy on them) agree on something, the judge must not contradict them by his own opinion; when they differ among themselves, Abdallah ibn al-Mubarak said: "Abu Hanifa's view is taken (may Allah have mercy on him), for he was among the Successors (tabi'in) and he competed with them in giving fatwa." The later shaykhs said: "When two of them agree on something along with Abu Hanifa, their view is taken, even if Abu Hanifa is on one side and the two on the other; if the judge is capable of examination and ijtihad, he may choose; if not, he asks another and takes his view like a layman." (Mu'in al-Hukkam, 1/27; al-Fatawa al-Hindiyya, 3/312)
Al-Hasan ibn Ziyad mentioned in Adab al-Qadi: "The layman ignorant of the science, when he asks a jurist and receives a fatwa by the view of one of them, takes that view and may not go beyond it to another; if there are in the city two jurists, both agreeable to him, he takes from either; if they differ, let him consider which seems to him the more correct and take it if he can; if there are three jurists and two agree, he takes their view and may not go beyond to the third; if they differ and no two of them agree, he exercises his own opinion in what they ruled for him and acts by whichever view seems most correct to him, without being allowed to act by other than one of them." Abu al-Abbas al-Natifi said: "This is when the questioner belongs to the school of the people of Iraq: if one scholar rules by Abu Hanifa's view, another by Abu Yusuf's, another by Muhammad's or Zufar's, he may not take al-Shafi'i's view or Malik's, but he may take the judge's view if he ruled contrary to his school; if there are in the city people of fiqh, let him consult them, for Allah commanded His Messenger to that by His word quoted above, and the judge is not more perceptive than the Messenger (peace and blessings of Allah be upon him); if they agree and his view is theirs, the judgment is accomplished; if they differ, he considers the view nearest the truth and carries it out, if he is among those of ijtihad, and age is not considered; when the jurists of the city agree on something and his view contradicts it, he must not hasten to judge until he writes to others and consults them."
The default is that the judge rules in favor of anyone whose testimony against him is acceptable. It is not permitted for the judge to rule for himself according to the Hanafis, the Malikis and the Shafi'is in one view, even if his opponent consents; but if he rules against himself, it counts as an acknowledgment of what his opponent claims; in one view of the Shafi'is and according to Asbagh among the Malikis, his ruling is valid.
The jurists differed: may the judge rule for one whose testimony is not acceptable on his behalf, such as his parents, his children or his partners? The scholars gave a detailed treatment here.
First, the majority of jurists stated that he may rule neither for himself nor for those whose testimony is not accepted on his behalf, such as his ascendants and descendants; for judgment is built upon testimony, and he cannot be a witness for them, hence not a judge for them, because of suspicion; but he may rule against them, since he could testify against them, and so the judgment follows. The Hanafis said: he may rule for one whose testimony is acceptable on his behalf, such as his brother, his paternal uncle and their children; likewise if he rules for his wife or her mother; if both have died, his ruling is no longer permitted for them if his wife would inherit anything of that, for if he testified for them in this situation it would not be permitted; and if he rules for his son's wife or his daughter's husband while the beneficiary is alive, it is permitted; if he is dead, it is not permitted if the son or the daughter inherit, for what we have said. (Mu'in al-Hukkam, p. 35; Bada'i' al-Sana'i', 7/8; al-Jawhara al-Nayyira, 6/219; al-Lubab, 2/492)
The Malikis: the judge may not rule for himself; if he has something due before another, he refers it to someone else and appoints an agent to litigate on his behalf, or he may litigate himself without an agent; if his opponent wants him to judge the matter himself, he does not accept; his ruling for himself is not permitted, except that he rule against himself, which counts as an acknowledgment of his opponent's claim. Asbagh said regarding the arbitration of the judge's opponent: "I do not like it; if it happens, it has passed; let him mention in his judgment his consent to the arbitration and have recorded before him the testimony of whoever testified to his consent."
His ruling for relatives whose testimony is not acceptable on their behalf involves four views:
(Tabsirat al-hukkam, 1/71-73; al-Dhakhira, 10/110)
The Shafi'is: the judge may not rule for himself, just as he may not testify for himself. If a dispute arises between him and another, they go to the imam or to some of the judges appointed by the imam; if they go to the substitute of the judge who is his opponent, it is valid, for Umar (may Allah be pleased with him) brought his dispute with Ubayy ibn Ka'b before Zayd ibn Thabit; Uthman (may Allah be pleased with him) with Talha before Jubayr ibn Mut'im; Ali (may Allah be pleased with him) with a Jew over a coat of mail before Shurayh. His ruling against himself takes effect; is it an acknowledgment or a judgment? Two views, and both views hold that it is a judgment. He may not rule for his parent however high, nor for his child however low; Abu Thawr said: it is permitted; our proof: testimony is not accepted on his behalf, so his ruling is not valid for him, as for himself. If his parent and his child bring their dispute before him, is his ruling between them valid? Two views: the first, it is not, as his ruling between one of them and a stranger; the second, it is, for they are equal in partiality toward him, which removes the suspicion of inclination. He may not rule for his partner in what they share, because of the suspicion; he rules for himself and for these if the dispute occurs: his deputy, the imam, or another judge, due to the absence of suspicion; and he does not rule against his enemy, just as he does not testify against him. He may rule for an orphan commended to him by will, for the judge is the guardian of the affairs of all orphans even if he is not their executor, with no suspicion; it has been said: that is not permitted for him, as he does not testify for him. His ruling is permitted for anyone whose testimony is acceptable on his behalf: a brother, an uncle, a cousin. (al-Umm, 6/216; al-Muhadhdhab, 2/292; al-Bayan, 13/30)
As for the Hanbalis, Ibn Qudama (may Allah have mercy on him) said: "The ruler may not rule for himself just as he may not testify for himself; if a dispute arises between him and some people, he may be judged by some of his deputies or subjects: Umar judged Ubayy before Zayd and an Iraqi man before Shurayh; Ali judged the Jew before Shurayh; Uthman judged Talha before Jubayr ibn Mut'im. If a dispute arises for his parents, his child, or those whose testimony is not acceptable on his behalf: two views: the first, he may not rule for them himself, and if he rules for them his ruling does not take effect: the view of Abu Hanifa and al-Shafi'i, for testimony is not accepted on their behalf, so his ruling does not take effect as for himself; the second, his ruling takes effect: chosen by Abu Bakr, and it is the view of Abu Yusuf, Ibn al-Mundhir and Abu Thawr, for it is a judgment for others resembling strangers. According to the first view, when a dispute arises for them, the imam, another judge, or some of his deputies judge between them; if the dispute is between his parents themselves, his two children, or his parent and his child, he may not judge between them according to one of the two views, for the testimony of one for the other is not accepted, so judging between them is not permitted, as if his opponent were a stranger; according to the second, it is permitted: the view of some companions of al-Shafi'i, for they are equal before him, the suspicion of inclination removed and they resemble the two strangers." (al-Mughni, 10/136-137; al-Kafi, 4/439)
The fifth pillar is the defendant (al-maqdi 'alayh): everyone against whom the right is directed, either by his acknowledgment if he is among those whose acknowledgment is valid, or by testimony against him and the oath of purgation (istibra') if the right weighs upon a dead or absent person, or by his prolonged silence in absenting himself from the session of judgment while proof is established against him, or by testimony against him and his failure to answer according to the claim. The defendants are of two kinds: the present person in control of his affairs, and the absent. The present person in control of his affairs who has not refused to attend may not be judged against except after attending the session of judgment, for questioning him is possible and he is not judged against before being questioned.
The jurists differed: may the judge rule against the absent? The Hanafis: he may not rule against an absent person, for he is open to acknowledgment or denial and the meaning of the judgment becomes ambiguous; and just as judgment in favor of the absent is not permitted, judgment against him is not permitted either, unless someone comes who stands in his place, such as his agent or the one the judge instituted. (Bada'i' al-Sana'i', 6/222-223 and 7/8-9; al-Jawhara al-Nayyira, 6/215; al-Lubab, 2/490)
However Ibn Abidin (may Allah have mercy on him) said: "The author of Jami' al-Fusulayn said, in summary: their opinions were in turmoil over judging the absent; I hold that precaution should be observed, taking note of hardship and necessities, and ruling accordingly for validity or invalidity, preserving rights; the three imams permitted it; we have two narrations, and the more prudent course is to appoint an agent in his name who knows he is safeguarding the absent party's side and does not neglect his right." He approved it in Nur al-Iyn and reliance upon it is fitting; and the amir al-Khayr al-Ramli said in the gloss on al-Bahr: "But if hardship and necessity are observed, the impossibility of reviewing and bringing the absent person must be considered, to the point that even if it were possible, it would not be valid for lack of necessity." And Allah gives success. (Tanqih al-Fatawa al-Hamidiyya, 4/61)
The majority of jurists, the Malikis, Shafi'is and Hanbalis, held it permitted to rule against the absent if the opponent establishes the proof and asks the judge to rule against him. Their proofs: His word:
"And that you judge between them by what Allah has revealed"
Surah al-Ma'ida, 49
with no distinction between present and absent; and His words (peace and blessings of Allah be upon him):
"If people were given their claims, some people would claim the lives of others and their property; but the oath rests upon the defendant"Reported by Bukhari (4277) and Muslim (1711)
with no distinction whether the defendant is present or absent; and his words (peace and blessings of Allah be upon him) to Hind:
"Take what suffices you and your child in a reasonable manner"Reported by Bukhari (5049) and Muslim (1714)
and judgment was rendered against Abu Sufyan while he was absent; and by the consensus of the Companions: Malik narrated from Umar ibn Abd al-Rahman ibn Dilar al-Muzani from his father that a man of Juhayna used to race ahead of the pilgrims, buying the riding beasts, raising their price, then hurrying the march to outpace the pilgrims; he went bankrupt and his case was brought before Umar ibn al-Khattab, who said:
"Now then, O people: al-Usayfi' has disappointed Juhayna; trust was placed in his religion and his honesty until it was said that he outpaced the pilgrims; yet he has gone into debt while evading, and the debt has weighed heavily upon him: whoever has a claim against him, let him come tomorrow morning and we will divide his property among them; beware of debt, for its beginning is worry and its end war."Reported by Malik in al-Muwatta (1460)
He was absent and it was not denied against him: that was consensus and analogy of the dead person's proof over the present person's, and consensus on ruling the blood money (diya) against the 'aqila while absent and against the dead, who is greater than the absent. For were judging the absent not allowed, people would take others' property and disappear, and property would be lost; the absent person's property may vanish before his return and the right be lost; by analogy to the case where proof testifies against a group some of whom are present, and against the missing person.
For the prohibition is either anticipating denial upon his return, which counts for nothing since proof has testified against him; or preferring the proof, which he will not miss in their presence, and they may not be expelled so that no doubt remains; and for one whose consent is not considered, his presence is not considered either. Otherwise absence and waiting would become a path to annulling rights, a means of nullifying people's rights: no one would take others' property without returning it except by absenting himself so that judgment becomes impossible. And because it is agreed that the ruler hears the proof against (the absent), the benefit lying in judging by it, otherwise hearing it would bring no profit.
This previous disagreement concerns other than the legal punishments (hudud); as for the hudud, they are not permitted according to the majority of jurists, except theft: compensation (ghurm) is ruled without amputation if proof is established; other than that, it is not permitted except a Shafi'i view allowing it. (al-Ishraf 'ala Nakti Masa'il al-Khilaf, 5/29 and 32; Sharh Sahih al-Bukhari, 8/251-252; al-Dhakhira, 10/113-114; al-Qawanin al-Fiqhiyya, p. 197; Tabsirat al-hukkam, 1/76; al-Bayan, 13/105 and 108; al-Mubdi', 10/117; al-Insaf, 11/303)
Al-Mawardi said: "There is no disagreement among the jurists that the judge may rule by his knowledge in declaring witnesses reliable or unreliable (jarh wa ta'dil)." (al-Hawi al-Kabir, 16/321) Imam Ibn Rushd (may Allah have mercy on him) said: "The scholars agreed that the judge rules by his knowledge in approving and disqualifying witnesses, and that if the witnesses testify against his knowledge, he does not rule by their testimony." (Bidayat al-Mujtahid, 2/351)
The second type is that the judge rules by his knowledge in rights (huquq). If the judge knows the state of the matter judged and no proof is established before him, such as knowing that a man usurped money from another or borrowed from him, or that a man fornicated or stole: may he rule there by his knowledge? This involves two figures. The first is that he rules by his knowledge in rights.
The Malikis, the Shafi'is in one view, and the Hanbalis in the madhhab: the judge does not rule by his knowledge in rights, neither in what he knew before his appointment nor after, based on the word of Allah:
"And those who accuse chaste women and then do not bring four witnesses"
Surah an-Nur, 4
and the rest of the verse: He ordered flogging the slanderer if he does not bring four witnesses, without distinguishing whether the ruler knows it or not; and based on His words (peace and blessings of Allah be upon him) to al-Hadrami:
"Your two witnesses or his oath; you have nothing else"Reported by Bukhari (2380), Muslim (139) and Ahmad (18883)
it follows that ruling by other than that is not permitted, which indicates the absence of judgment by knowledge. It is narrated that a man claimed a right against a man before Umar (may Allah be pleased with him); Umar said: "Who testifies for you?" He said: you. Umar said: "If you wish, I testify for you and do not judge; if you wish, I judge for you and do not testify." For if the ruler's knowledge equaled the testimony of two witnesses, marriage would be concluded by it alone. Umm Salama (may Allah be pleased with her) narrated that the Messenger of Allah (peace and blessings of Allah be upon him) said:
"I am only human: you bring your disputes to me, and perhaps one of you is more eloquent in his argument than the other, so I judge for him as I hear; whoever I judge for against the right of his brother, I only cut out for him a piece of the Fire"Reported by Bukhari (6748) and Muslim (1713)
and its apparent meaning is that he judges only by what he hears at the time of judgment; it is narrated: "and I only judge", which is explicit, or nearly so, that he judges only by what he hears. And the words of the Prophet (peace and blessings of Allah be upon him) in the hadith of Hilal ibn Umayya (may Allah be pleased with him) when he performed the mutual invocation of curses (li'an) against his wife: "Look at him: if she gives birth to him with such a description, he belongs to Hilal; if with such, he belongs to her partner"; the child came with the disfavored description, and the Prophet said:
"If I were to stone anyone without evidence, I would have stoned this woman"Reported by Bukhari (5004)
so he did not rule by his knowledge, for lack of established proof. Aisha (may Allah be pleased with her) narrated that the Prophet sent Abu Jahm ibn Hudhayfa as a collector of charity; a man disputed with him over some charity and Abu Jahm struck him, fracturing his skull; they came to the Prophet saying: "Retaliation, O Messenger of Allah!" He said: "I will address the people and inform them of your consent." They said: yes; he addressed them and said: "These men of the Layth clan came seeking retaliation; I offered them such and such and they refused; do you consent?" They said: no; the Muhajirun set upon them and the Messenger of Allah ordered them to leave them, and they did; then he called them and added: "Do you consent?" They said: yes; he said: "I will address the people and inform them of your consent", they said: yes; he addressed them and said: "Do you consent?" They said: yes. (Authentic hadith, reported by Abu Dawud (4534), Nasa'i (4778) and Ibn Majah (2638))
The Prophet (peace and blessings of Allah be upon him) thus did not rule against them by his knowledge when they denied, as a teaching for his community and to close the door of suspicion and conjecture. He also refrained from killing the hypocrites despite knowing their disbelief, and said: "...lest people say that Muhammad kills his companions" (Reported by Bukhari (4622) and Muslim (2584).); he did not kill them because the people did not know their disbelief as he knew it. And since the ruler is not infallible, may be suspected, and that may occur on his part, the matter was settled by prohibiting him from ruling by his knowledge, lest it be said of him that he judged against his enemy. For the witness is delegated for establishing proof and the judge for judgment: since the witness may not be a judge by his testimony, the judge may not be a witness by his judgment. Testimony is not established by less than two: if the judge could rule by his knowledge, the right would be established by a single testimony; and if the judge equaled two witnesses, marriage would be valid by his presence alone since he holds their rank: the impossibility of this is evidence of the prohibition of ruling by his knowledge, for permitting judgment by the judge's knowledge leads to suspecting him and to his ruling as he desires. (al-Ishraf 'ala Nakti Masa'il al-Khilaf, 5/35-37; al-Tamhid, 22/216-219; al-Istidhkar, 7/93-94; Bidayat al-Mujtahid, 2/351-352; al-Bayan wa al-Tahsil, 16/313; al-Hawi al-Kabir, 16/322-323; al-Bayan, 13/102-104; al-Mughni, 10/101-102; al-Zarkashi's Sharh, 3/371-372; al-Turuq al-Hukmiyya, pp. 285, 288)
The Hanafis, the Shafi'is in the sounder view, and the Hanbalis in a narration: he may rule by his knowledge in rights: if he learns of a right of Allah's servants during his term and within its jurisdiction, he may rule by it, for his knowledge equals the testimony of two witnesses and more; certainty is obtained by what he saw and heard directly, whereas testimony yields only predominant conjecture; there is consensus that his lone word is accepted in what is not contested by a party, and as soon as he says "I have ruled thus", his judgment takes effect.
"O Dawud, We have made you a successor upon the earth, so judge between the people in truth"
Surah Sad, 26
"So judge between them with justice"
Surah al-Ma'ida, 42
and truth is the opposite of falsehood, with no distinction between judging by proof or by knowledge; and His word:
"O you who believe, be steadfast in justice, witnesses for Allah"
Surah an-Nisa, 135
and it is not justice for the ruler to know that one of the two parties is wronged and the other wronging, and to leave each in his state. The Prophet (peace and blessings of Allah be upon him) said: "Let not the awe of people prevent any of you from speaking the truth when he sees or hears it" (Reported by Imam Ahmad (11030, 11516).) Hind said: "O Messenger of Allah, Abu Sufyan is a stingy man: he does not give me what suffices me and my child except what I take from him secretly", and the Prophet (peace and blessings of Allah be upon him) said:
"Take what suffices you and your child in a reasonable manner"Reported by Bukhari (5049) and Muslim (1714)
the Messenger of Allah thus ruled that she take her maintenance from his property, without proof or acknowledgment, knowing her truthfulness. For ruling by the stronger is better than ruling by the weaker: judgment by testimony proceeds from predominant conjecture, judgment by knowledge from decisive certainty through direct perception and hearing; since judgment by testimony is permitted, judgment by knowledge is more so; just as if ruling by a single person's report is permitted, ruling by a mass-transmitted report is more so, and if ruling by the report of a narrator about the Messenger is permitted, ruling by the Messenger's own word (peace and blessings of Allah be upon him) is more so. Since ruling by his knowledge is permitted in declaring witnesses reliable or unreliable, it is permitted elsewhere, by its stronger cause. Prohibiting the judge from ruling by his knowledge would lead to the suspension of judgments or to the impiety of rulers: a judge hears a man pronounce triple divorce upon his wife or free his slave, then the man denies it; if he administers an oath and constrains him, he is impious; if he does not, judgment is suspended; if he rules by his knowledge, he is safe from both.
It is equal whether his knowledge dates from before or during his term: he rules by it according to Abu Yusuf, Muhammad, the Shafi'is and the Hanbalis, as during his term, for he knows its validity, as if he had learned it after his appointment in his act. The proof of the equality between what precedes the appointment and what follows it: since ruling by knowledge is permitted in declaring witnesses reliable or unreliable before and after the appointment, and forbidden in the hudud before and after, what lies beyond those two follows them: if ruling by knowledge is permitted there, what he knew before and after the appointment is equal, like the reliability and unreliability of witnesses; if it is not permitted there, it is equal, like the hudud, and this distinction collapses. According to Imam Abu Hanifa, he rules by his knowledge only in what he learned during his term and within its jurisdiction; what he learned before his term, or outside the place of his term, he does not rule by, for outside his district and appointment he is a witness, not a ruler, and the testimony of one is not accepted; he is like one who learned it by a just proof and was then appointed judge: he does not act by it. (Mukhtasar Ikhtilaf al-'Ulama, 3/369-370; Sharh Mukhtasar al-Tahawi, 8/54-55; Fatawa al-Sughdi, 2/781; al-Ikhtiyar, 2/105; Sharh Fath al-Qadir, 7/314; al-Hawi al-Kabir, 16/322-323; al-Bayan, 13/102-104; al-Mughni, 10/101-102; al-Zarkashi's Sharh, 3/371-372; al-Turuq al-Hukmiyya, pp. 285, 288)
But the fatwa of the later Hanafis is the prohibition of the judge ruling by his knowledge, because of the corruption of the times. Ibn Abidin said: "The judge may act by his knowledge, and the fatwa is otherwise in our time, as quoted in al-Ashbah from Jami' al-Fusulayn; the restriction to our time is due to the corruption of judges in it; the origin of the madhhab is permissibility." (Hashiyat Ibn Abidin, 5/423 and 5/439)