Islamic Fiqh > Judgment and testimony > Judgment (qada) and its conditions > Second figure: ruling by one's personal knowledge in the legal punishments
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Updated on 26 September 2026 at 7:12 PM
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The jurists differed concerning the judge who knows the state of the matter with no proof established before him, such as knowing that a man fornicated or stole: is the legal punishment (hadd) applied in virtue of his knowledge? The majority of jurists, the Hanafis, the Shafi'is in the madhhab and the Hanbalis in the madhhab, held that the judge does not rule by his knowledge in the hudud, neither in what he knew before his appointment nor after, for he is a party in them: the hudud are Allah's right and he is His deputy, and Allah's rights are founded upon discretion, based on the Prophet's words (peace and blessings of Allah be upon him):
"Why did you not cover him with your garment, O Huzal?"Authentic hadith, reported by Abu Dawud (4377)
And based on His word:
"And those who accuse chaste women and then do not bring four witnesses, flog them with eighty stripes"
Surah an-Nur, 4
He ordered flogging the slanderer when the proof is not established. And based on His words (peace and blessings of Allah be upon him) in the hadith of Hilal ibn Umayya when he performed the li'an against his wife: "If she gives birth with such a description, he belongs to Hilal; if with such, he belongs to her partner"; the child came with the disfavored description, and he said: "If I were among those who stone without evidence, I would have stoned her" (Reported by Bukhari (5004).) The place of the proof: he (peace and blessings of Allah be upon him) knew that she had fornicated, from the information that if the child came with such a description he was from other than her husband; yet he did not apply the punishment for lack of proof. Abu Bakr al-Siddiq (may Allah be pleased with him) said: "If I saw a man upon a punishment, I would not apply it myself, nor would I assign it to anyone until I had another with me." (Reported by al-Bayhaqi in al-Sunan al-Kubra (20292).) From Ikrima: Umar ibn al-Khattab (may Allah be pleased with him) said to Abd al-Rahman ibn Awf: "What do you say if I see a man kill, steal or fornicate?" He said: "I consider your testimony to be the testimony of one Muslim man." He said: "You are right." (Reported by al-Bayhaqi in al-Sunan al-Kubra (20293).) And no contradictor among the Companions is known.
For Allah's rights are placed upon leniency and tolerance, being dropped by doubt. Except the punishment of slander (qadhf) among the Hanafis in particular: for demanding its application is a right of the children of Adam; in the other hudud, the judge and all the Muslims are a party, since it is Allah's pure right, like the witnesses themselves, and the judge is therein like a witness. (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-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 Shafi'is in one view and the Hanbalis in a narration: he may rule by his knowledge in the hudud as he rules by it in rights. (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)
Imam Ibn al-Qayyim mentioned some of the arguments of each of the two parties, those who permit and those who forbid. The proponents of permission, after presenting the disagreement, invoked the word of Allah in Surah an-Nisa, 135, already quoted: 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. Others said: there is no harm in this, since the wronged party has not come with a proof by which to rule in his favor: the ruler is excused, having no proof by which the holder of the right attains his right; and the master of judges (may the blessings and peace of Allah be upon him) said: "You bring your disputes to me; perhaps one of you is more eloquent than the other; I consider that he speaks the truth and I judge for him; whoever I judge a portion of his brother's right for, let him not take it, for it is only a piece of the Fire" (Reported by Bukhari (6748) and Muslim (1713).) They also invoked the Prophet's words (peace and blessings of Allah be upon him):
"Whoever among you sees an evil, let him change it with his hand; if he cannot, then with his tongue; if he cannot, then with his heart"
When the ruler alone sees a man's aggression against another, usurping his property, or hears his divorcing of his wife or the freeing of his slave, then sees the man persisting in keeping the wife or selling the one whose manumission he declared, he has confirmed the evil he was commanded to change. Others answered: he is charged with changing what the people know to be evil in such a way that no suspicion can touch him in changing it; but if he approaches a man with his wife and family, with no one having testified that he divorced her or freed the slave, nor anyone ever having heard of it, and then separates them claiming the divorce and the manumission, he would be attributed at face value to changing the proper into evil, and people would suspect him and fall upon his honor.
Can it be fitting for the ruler to go to a man of concealed standing among the people, not known for indecency, without a single witness, and stone him saying "I saw him fornicate", or kill him saying "I heard him insult", or separate the spouses saying "I heard him divorce"? Is this not pure suspicion? If this door were opened, especially for the judges of the age, every judge who has an enemy would find the path to kill his enemy, stone him, declare him impious and separate him from his wife, especially if the enmity is hidden and impossible for his enemy to establish. And even if the correct position were that the ruler judges by his knowledge, the judges of this era must be prevented from it; what would be said of Shurayh, Ka'b ibn Sur, Iyas ibn Mu'awiya, al-Hasan al-Basri, Imran al-Talhi, Hafs ibn Ghiyath and their like would carry whatever it carries.
It is established from Abu Bakr, Umar, Abd al-Rahman ibn Awf, Ibn Abbas and Mu'awiya the prohibition of that, and no contradictor among the Companions is known for them. Al-Bayhaqi and others narrated from Abu Bakr al-Siddiq: "If I found a man upon one of Allah's punishments, I would not apply it until I had another with me." From Umar to Abd al-Rahman ibn Awf is the saying quoted above, and from Ali something similar. This is part of the perfection of the Companions' fiqh (may Allah be pleased with them), the most versed of the community in fiqh and the most knowledgeable of the aims of the Law and its ruling: suspicion is effective in the chapter of testimonies and judgments, the sick person's divorce and other matters: the testimony of a master for his slave is not accepted, nor the slave's for his master, nor the parent's for his child nor the reverse, nor the enemy's against his enemy; the ruler's judgment for himself is not accepted and his judgment against his enemy does not take effect; the deathly sick person's acknowledgment is not valid for his heir, nor for a stranger in Malik's school if suspicions arise; a woman is not deprived of inheritance by his divorcing her, because of suspicion; a woman's word regarding her harm that she breastfed is not accepted, and many more examples of what is rejected on account of suspicion; that is why we forbade, in the matter of the ruse (al-zafar), the wronged party taking from his wrongdoer's property the equivalent of what he betrayed him of, because of suspicion, even though he is only recovering his right.
The master of judges (may the blessings and peace of Allah be upon him) knew of the hypocrites what would permit their blood and property and verified it, yet did not judge among them by his knowledge, while being innocent before Allah, His angels and His believing servants of every suspicion, lest people say: "Muhammad kills his companions." When some of his companions saw him with his wife Safiyya bint Huyayy, he said: "Slow down, you two; this is Safiyya bint Huyayy", so that no suspicion would fall into their souls. Whoever reflects on the Law, its interests and the blocking of means sees the correct position in this issue; and success is with Allah. (al-Turuq al-Hukmiyya, pp. 289-292)
The people of knowledge agreed that the judge must not rule while angry: he should base his examination on the moment when his soul is calm and his states moderate, so as to be able to strive in ijtihad in new cases and guard against error in rulings. If his state changes through anger or fever, his intellect and character change and he suspends the judgment, as a precaution against error, based on what the two shaykhs narrated from Abd al-Malik ibn Umayr: I heard Abd al-Rahman ibn Abi Bakra say: Abu Bakra wrote to his son, who was in Sijistan, not to judge between two people while angry, for I heard the Prophet (peace and blessings of Allah be upon him) say:
"A judge must never judge between two people while he is angry"Reported by Bukhari (3739) and Muslim (1717)
For under anger his intellect is deranged and his opinion, like his reflection, is no longer complete. Within the meaning of anger falls everything that occupies his reflection: excessive hunger, intense thirst, a bothersome pain, withholding one of the two natural calls, heavy sleepiness, worry, grief, sadness and joy: all of this prevents the ruler, for it prevents the heart's presence and the completeness of reflection through which the truth is most often attained; all of it is within the meaning of the prescribed anger and follows its ruling. Whoever restricts the prohibition to anger alone, excluding bothersome worry, disturbing fear, hunger, intense thirst and the preoccupation of the heart that prevents understanding, has but little fiqh and understanding.
If he judges in these states, his judgment is valid according to the Hanafis, the Malikis, the Shafi'is and the Hanbalis in the madhhab: al-Zubayr and a man of the Ansar brought their dispute to the Messenger of Allah (peace and blessings of Allah be upon him) concerning irrigation; the Messenger of Allah said to al-Zubayr:
"Irrigate your crop, then send the water to your neighbor." The Ansari said: "Even though he is your cousin, O Messenger of Allah?" The face of the Messenger of Allah reddened with anger, then he said to al-Zubayr: "Irrigate your crop and withhold the water until it reaches the root, then send it to your neighbor."Reported by Bukhari (4309) and Muslim (2357)
He thus judged in a state of anger. A jurist of the Hanbalis held that if he judges in this state, his judgment does not take effect, for he is forbidden it and the prohibition requires the invalidity of what is forbidden. Ibn Rushd said: "They agreed, as far as I know, that his judgment takes effect; it may be said that it does not take effect in what the text fell upon, namely anger, for the prohibition indicates the invalidity of what is forbidden." (Bidayat al-Mujtahid, 2/355; see Sharh Fath al-Qadir, 7/271; Sharh Sahih al-Bukhari, 8/226; al-Kafi, p. 497 and 4/442; al-Qawanin al-Fiqhiyya, p. 195; al-Hawi al-Kabir, 16/32-33; al-Muhadhdhab, 2/293; Sharh Sahih Muslim, 12/15; al-Mughni, 10/99; I'lam al-Muwaqqi'in, 1/217; al-Zarkashi's Sharh, 3/369-370; al-Mubdi', 10/38-39; al-Insaf, 11/109; Kashshaf al-Qina', 6/395)
The jurists differed: does the ruler's judgment change the reality of things? Imam Abu Hanifa (may Allah have mercy on him) held that the ruler's judgment is valid outwardly and inwardly: if he rules by a contract, a rescission or a divorce, his judgment takes effect outwardly and inwardly. Thus, if two men knowingly give false testimony that a man divorced his wife, and the judge accepts them for their appearance of probity and separates the spouses, marriage with one of the witnesses would become lawful after her waiting period, even though he (the judge) knows they lied knowingly. Likewise, if a man claims marriage to a woman while knowing that he lies, produces two false witnesses and the ruler rules, she becomes lawful to him and becomes his wife.
Ibn al-Mundhir said: Abu Hanifa alone said: if a woman hires two witnesses who testify in her favor to her husband's divorcing her, knowing their lie and forgery, the ruler's judgment of her divorce makes it lawful for her to remarry, and lawful for one of the witnesses to marry her.
His proof: what is narrated from Ali (may Allah be pleased with him): a man claimed marriage to a woman and brought the case before Ali; two witnesses testified in his favor and he judged the marital bond between them; she said: "By Allah, he did not marry me, O commander of the faithful; conclude our marriage contract so that he becomes lawful to me." He said: "Your two witnesses married you to him." She was asking him to protect her from fornication by concluding the marriage between the two, and he did not compel her to it; it is not said that he did not compel her because the husband refused it, for it is not so: the husband was content, since he claims the marriage, and the woman also consented, when she said: "marry me to him"; and that was possible for him, for the husband desired her and then did not pursue it; he showed that their aim was realized by his judgment when he said: "your two witnesses married you", that is: I bind you to the judgment of marriage between you two, and the marriage is established by judgment; what is narrated from him in this chapter is like what is mawquf to the Messenger of Allah (peace and blessings of Allah be upon him), and no path allows knowing its truth by opinion.
The meaning is that he judged by Allah's command within what pertains to his constitutive authority (insha'), and his judgment by Allah's command takes effect in truth, for it is impossible that Allah command a judgment that would not be executed. As for the description: when he examined the witnesses' state and verified them in private and in public, judgment by their testimony became obligatory upon him; even were he to withhold, he would sin, be expelled, deposed and then excused: we know he became commanded to judge; and that because he has no path to knowing the truth of lying within testimony, Allah having established no path to knowing the truth of the report of one not preserved from lying; obligation is according to capacity: it is within his capacity to know the witnesses' state; if he investigated that to the utmost degree, he has done what is in his power and becomes commanded to judge, what lies beyond being set aside as beyond his capacity, and the command reaches him according to possibility. What is commanded is to make her his wife by his judgment: two paths therefore, revealing an existing marriage or creating a contract between the two; if no contract preceded them, revelation by judgment becomes impossible and creation is determined; he then holds constitutive authority by this type of legal proof, and his creation equals that of the two parties: lawfulness is established in truth between them, his judgment being moreover stronger than the two parties' creation by consensus: see that in legal acts with binding effect, what is established by the judge's creation is not established by the two parties' creation; his judgment is therefore stronger. And because the li'an dissolves the marriage even if one of the two lies, the judgment being sounder. (Fatawa al-Sughdi, 2/784-785; al-Mabsut, 16/180-182; al-Ikhtiyar, 2/105-106; Tabyin al-Haqa'iq, 2/116; Durrar al-Hukkam, 8/389; Majma' al-Anhar, 3/237; Hashiyat Ibn Abidin, 5/405-406)
The majority of jurists, the Malikis, Shafi'is, Hanbalis, as well as Abu Yusuf and Muhammad among the Hanafis: the ruler's judgment does not change the reality of things; it does not make lawful what was unlawful before, nor unlawful what was lawful. If he rules for a claimant by the testimony of two witnesses: if they are truthful, his judgment is valid outwardly and inwardly; if they are liars, his judgment takes effect outwardly and is void inwardly; it does not become lawful for the beneficiary, before Allah, to appropriate what was judged: property, private parts or blood. Likewise, if property is claimed from him whose word is accepted with an oath, such as deposits, partnership and mudaraba: if the ruler administers the oath upon his denial, if he is truthful he is cleared outwardly and inwardly; if he is a liar, he is cleared outwardly without the inward, and what he swore upon does not become lawful for him; the ruler's judgment does not transfer things from their inner reality.
The proof: the Book, the sunna and consideration. As for the Book, His word:
"Do not consume your property among yourselves unjustly, nor offer it to judges in order to consume sinfully a portion of the people's wealth while you know"
Surah al-Baqara, 188
In its interpretation there are proofs like the texts: "Do not consume your property among yourselves unjustly" has two interpretations: by injustice, or by the unlawful, and judgment by false testimony is not separate from it; "nor offer it to judges" has two interpretations: you litigate it before the judges, or you argue by it before the judges, and that is the description of the one for whom false testimony is given; "in order to consume a portion of the people's wealth sinfully while you know": the property of a party of the people; "sinfully" has two interpretations: by false testimony, which is explicit, or by denial, which is of the meaning of the text.
As for the sunna, Umm Salama (may Allah be pleased with her) narrated that the Prophet (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 a portion of his brother's right for, let him not take it, for I only cut out for him a piece of the Fire"Reported by Bukhari (6748) and Muslim (1713)
This is a text: he informed that he judges by the outward, and that in its inner reality the judgment does not make lawful the unlawful nor unlawful the lawful. And from Abu Hurayra:
"A man was killed in the time of the Messenger of Allah (peace and blessings of Allah be upon him) and the killer was handed over to the victim's heir; the killer said: O Messenger of Allah, by Allah I did not intend to kill him; the Messenger of Allah said: 'If what he says is true and you killed him, you will enter the Fire'; so the man set him free"; he was belted with a waist-cloth (nis'a) and went out dragging it, then was called Dhu al-Nis'a, and the nis'a is a clothAuthentic hadith, reported by Abu Dawud (4489), at-Tirmidhi (1407), an-Nasa'i (4722) and Ibn Majah (2690)
The place of the proof: the Prophet (peace and blessings of Allah be upon him) counted his permission to kill him as an information that he was truthful and made killing him unlawful: the judgment therefore takes effect outwardly without the inward. As for consideration: false testimony is more corrupt than the testimony of a slave and a disbeliever, and judgment over property is lighter than that over private parts; since the judgment does not take effect inwardly by the testimony of a slave and a disbeliever, it is more fitting that it not take effect upon the private parts by false testimony; and since it does not take effect by false testimony in property, it is more fitting that it not take effect upon the private parts. Two analogies escape the weakness of this argument: the first, every testimony by which the judgment of the inward does not take effect in property does not take effect upon the private parts, by analogy to the testimony of the slave and the disbeliever; the second, every judgment that does not take effect inwardly by the testimony of the slave and the disbeliever does not take effect by false testimony, unlike the judgment over property.
If they say: the rulers have no entry into transferring property, but an entry into transferring the private parts through marrying previously married women, separation by the mutual invocation of curses and rescission for defects: that is the distinction between property and private parts. And the slave and the disbeliever are not of the category of testimony, whereas the false witness is: that is the distinction between the two.
The answer to their distinction between property and private parts has two points: the first, he holds in transferring property an authority like that over the private parts, since he may make the minor's property lawful for his need and the insolvent's property for his creditors' need; the second, he holds no authority in transferring the private parts just as he holds none in transferring property, for he neither marries nor rescinds except by choice; were he to hold the guardianship, he would transfer by choice.
Two answers to his distinction between false testimony and the testimony of the slave and the disbeliever: the first, since they are equal in annulling the judgment by knowledge preceding the judgment, they must be equal in knowledge following the judgment; the second, he heard the false testimony as not being false, just as he hears the slave's testimony as him not being a slave; since his error about the slave annuls his judgment in both states, his error about the false testimony must annul his judgment in both states; for he becomes impious by false testimony, and judgment by an impious person's testimony is rejected in both states explicitly, whereas the slave's testimony is rejected in both by ijtihad; moreover, the judgment is voided by the corruption of the testimony just as when he contradicts a text by his ijtihad; since its corruption is contradiction of the text, it becomes void outwardly and inwardly, and corruption by testimony must therefore entail annulment outwardly and inwardly. If they say: what contradicts the text is not a judgment; the answer: likewise what he had carried out by false testimony is not a judgment, and it is a judgment by false testimony, hence void like the judgment of retaliation.
The answer to the words of Ali (may Allah be pleased with him), "your two witnesses married you", has three aspects: the first, it is unknown to the hadith scholars and its state is worse than the weakness of its chain; the second, he did not know the witnesses' lying and thus did not annul their testimony, the disagreement arising only if he knows it; the third, they do not carry it in the sense "your two witnesses married you", for they make the ruler the one who marries her, not the witness; Shurayh judged in Ali's days: when he ruled for a man by two witnesses, he would say to him: "O you, my judgment does not make lawful to you what is unlawful to you", and had Ali contradicted him in that, he would have disapproved of it. The answer to their analogy upon truthful testimony: the impossibility of combining the two by acceptance, since the truthful is accepted, the liar rejected, and the judgment takes effect outwardly due to their equality in ignorance of the lie; were he to know, it would not take effect outwardly as it does not inwardly.
As for the answer to their analogy upon the li'an, it has two points: the first, the judgment did not take effect by the lie but by the li'an; the second, the li'an is a resumption of separation, whereas judgment by false testimony is only the execution of a prior separation: if it does not exist, executing what does not exist is not valid. And the answer to their evidence drawn from the ruler's judgment in matters of ijtihad: nothing inward contradicts the outward, so his judgment takes effect outwardly and inwardly, unlike false testimony, where the inward contradicts the outward: his judgment takes effect outwardly without the inward. (al-Dhakhira, 10/146-147; al-Furuq, 4/100-101; al-Hawi al-Kabir, 17/11-12; al-Mughni, 10/105; Fath al-Bari, 12/141-142; al-Mubdi', 10/99; al-Insaf, 11/312; Matalib Uli al-Nuha, 6/533)
The majority of scholars stated that the judge, if in need, may take a stipend (rizq) from the treasury of the Muslims; if he is not, they differed; and they agreed that taking a wage for judging is not permitted: only a stipend is taken. Imam al-Kasani (may Allah have mercy on him) said: "May the judge take a stipend? If he is poor, he may take it, for he works for the Muslims and must have sufficiency, and as he does not possess it, his sufficiency lies in the treasury, unless it constitutes the wage of his work; the imam should be generous toward him and his dependents so that he does not covet people's property." (Bada'i' al-Sana'i', 7/13-14; al-Fatawa al-Hindiyya, 3/329-330)
It is narrated that the Messenger of Allah (peace and blessings of Allah be upon him), when he sent Attab ibn Asid to Mecca and placed its command under him, allotted him 400 dirhams every year. It is narrated that the Companions (may Allah be pleased with them) allotted Abu Bakr al-Siddiq (may Allah be pleased with him) every day a dirham and a third, or two thirds, from the treasury; Umar (may Allah be pleased with him) had the like of a stipend from the treasury, and Ali (may Allah be pleased with him) every day a bowl of tharid. Umar provided for Shurayh, and Ali fixed for him 500 dirhams every month.
If he is rich, they differed: some said it is not lawful for him to take, for taking has the status of need and he has no need of it. Others said taking is lawful for him and it is better that he take: it is lawful because he works for the Muslims and his sufficiency weighs upon them without being a wage; it is preferable because, although he does not need it, a needy judge may come after him, and this having become sunna and custom, the sultans cannot abolish the judges' stipend, especially the sultans of our era; abstaining would be stinginess toward another's right: taking is therefore preferable.
Ibn Farhun the Maliki (may Allah have mercy on him) reported that al-Mazari said: "As for drawing a stipend from the treasury: the one upon whom judging is imposed while he is rich is forbidden compensation for judging, for that is more awe-inspiring and leads souls to believe in veneration and majesty; if judging is not imposed upon him and he needs to seek a stipend from the treasury, taking it is permitted to him." In Mufid al-Hukkam, Asbagh said: "He should take his stipend only from the khums, the jizya or the tithes of the protected people (dhimmis)." (Tabsirat al-hukkam, 1/27)
Imam al-Imrani (may Allah have mercy on him) said: "Taking a stipend for judging is examined: if judging is imposed upon him and he has sufficiency, taking is not permitted, for it is an obligation turned toward him and he may not take a stipend while independent of it; if he has no sufficiency, or he earns a living and judging interrupts his earning, taking is permitted to him, for in occupying himself with judging his earning lapses and his livelihood departs. If judging is not imposed upon him: if he has sufficiency, it is preferable that he not take, for it is a devotion that concerns him and compensation is disliked for him; if he takes, it is permitted, based on what is narrated: Abu Bakr (may Allah be pleased with him), upon becoming caliph, went out to the market with a bundle of cloth; they said: what is this? He said: I provide for my family; they said: this does not befit the caliphate; the Companions gathered and fixed for him every day two dirhams from the treasury. It is also narrated that the Companions fixed for him every day two sheep, one for his lunch and one for his dinner, and 1000 dirhams per year; when Umar became caliph he said: this does not suffice me, and they doubled it for him. What is established for the imamate holds for judging, for the two have one meaning."
It is narrated that Umar said: "I place myself in this wealth like the guardian of an orphan:"
"Whoever is rich, let him abstain, and whoever is poor, let him eat with what is reasonable"
Surah an-Nisa, 6
It is narrated that Umar (may Allah be pleased with him) sent to Kufa Ammar ibn Yasir as governor, Abdallah ibn Mas'ud as judge and Uthman ibn Hunayf as surveyor, and fixed for them each day a sheep: half and the extremities for Ammar, the other half between Abdallah and Uthman, and said: "A city from which a sheep goes out every day hastens to its ruin." When Umar appointed Shurayh to judgeship, he allotted him 100 dirhams each month, and when Ali appointed him, he allotted him the same: for the treasury's wealth is destined for interests, and this is among them. What the judge takes is not a wage but a stipend, like what the imam and the muezzin take. If a hire contract is concluded for judging, it is not valid, for it is work that is undetermined. If the imam finds a volunteer for judging without a stipend, he does not appoint the one who demands one; he gives the judge, along with his stipend, supplies (qaratis) for writing the minutes and the registers, drawn from the treasury, for that is among the interests; if there is nothing in the treasury, or something more important needed is there, the judge says to the one whose right is established: if you choose to bring paper, I will write it for you; and the judge is given, along with his stipend, provision for the agents at his door, for he needs it like the agent of the alms." (al-Bayan, 13/14 and 16)
Imam Ibn Qudama (may Allah have mercy on him) said: "The judge may take a stipend; Shurayh, Ibn Sirin, al-Shafi'i and most of the people of knowledge permitted it. Umar (may Allah be pleased with him) appointed Zayd ibn Thabit to judgeship and fixed a stipend for him; he provided Shurayh with 100 dirhams a month; he sent to Kufa Ammar, Uthman ibn Hunayf and Ibn Mas'ud and provided them each day a sheep, half for Ammar, half for Ibn Mas'ud and Uthman, and Ibn Mas'ud was their judge and their teacher. He wrote to Mu'adh ibn Jabal and Abu Ubayda when he sent them to Syria: 'Look for men among the righteous of those before you, appoint them to judgeship, be generous with them, provide for them and suffice them from the wealth of Allah.' Abu al-Khattab said: 'Taking a stipend with need is permitted; without it, two views.' Ahmad said: 'It does not please me that he take a wage for judging; if he does, in proportion to his work, like the guardian of the orphan.' Ibn Mas'ud and al-Hasan disliked wages for judging, and Masruq and Abd al-Rahman ibn al-Qasim ibn Abd al-Rahman did not take it, saying: 'We take no wage for rendering justice between two people.'"
The companions of al-Shafi'i: if judging is not imposed, taking a stipend is permitted to him; if it is, only with need. The sound position is the permissibility of taking in every state: Abu Bakr (may Allah be pleased with him), upon becoming caliph, had a stipend of two dirhams a day; and what we mentioned, that Umar provided for Zayd, Shurayh and Ibn Mas'ud and ordered fixing a stipend for whoever is appointed judge; for the people need it, and were fixing the stipend not permitted, judging would halt and rights would be lost. As for hiring for judging, it is not permitted: Umar (may Allah be pleased with him) said: "It does not befit the judge of the Muslims to take a wage for judging": that is al-Shafi'i's madhhab and we know of no disagreement in it; because it is a devotion whose doer must be of the people of devotion, like prayer; a man does not perform it for another but for himself, like prayer; and it is work that is undetermined. If the judge has no stipend and says to the two parties: "I will not judge between you two until you fix me a stipend for it", it is permitted, and it may be that it is not. (al-Mughni, 10/90-91)
There is no disagreement among the jurists: it is obligatory upon the ruler and the judge to rule by what Allah has revealed. If he does not rule by what Allah has revealed, his state is either denying and rejecting what Allah has revealed, or considering what he rules by better than Allah's ruling: there is no disagreement among the Muslims over his disbelief. As for one who rules by other than what Allah has revealed while considering Allah's ruling better than his: he is defiantly disobedient (fasiq); does he disbelieve by that? The scholars discussed it.
Imam Abu Bakr al-Jassas (may Allah have mercy on him) said: "His word:
"Whoever does not judge by what Allah has revealed, those are the disbelievers"
Surah al-Ma'ida, 44
carries either the disbelief of polytheism and rejection, or the disbelief of the bounty without rejection. If what is meant is rejecting Allah's ruling or ruling by other while being informed that it is Allah's ruling, it is a disbelief that removes one from the religion and its doer is an apostate if he was previously a Muslim; it is upon this that whoever said interpreted it: 'It was revealed concerning the Children of Israel and applies to us', meaning that whoever among us rejects a ruling or rules by other than Allah's ruling, then says this is Allah's ruling, is a disbeliever as the Children of Israel were. If what is meant is the disbelief of the bounty, ingratitude may occur by abandoning gratitude without rejection, and its doer does not leave the religion; the more apparent is the first meaning, due to the application of the name of disbelief to whoever does not judge by what Allah has revealed." (Ahkam al-Qur'an, 4/93)
Imam Ibn Jarir al-Tabari (may Allah have mercy on him) said, after mentioning the scholars' views on the revelation of the verse: "The most worthy of these views of being correct, in my view, is that of whoever said these verses were revealed concerning the disbelievers of the People of the Book, for what precedes and follows them concerns them, they are the intended ones, and these verses are the context of the report about them, so their being a report about them is more fitting. If someone says: Allah generalized the report over everyone who does not judge by what Allah has revealed, so how did you restrict it? It is said: Allah reported that about people who were rejecting Allah's ruling revealed in His Book, and informed that they are disbelievers for abandoning His judgment as they abandoned it; the same applies to everyone who does not judge by what Allah has revealed while rejecting it: he is a disbeliever in Allah as Ibn Abbas said, for by rejecting Allah's ruling after knowing that He revealed it in His Book, he resembles the one who rejects His prophet's prophethood after knowing it." (Tafsir al-Tabari, 6/257)
Imam Ibn al-Arabi (may Allah have mercy on him) said: "Tawus and others said concerning this verse: 'It is not a disbelief that removes one from the religion, but a lesser disbelief; and it varies: if he rules by what he has, considering it from Allah, it is a substitution requiring disbelief; if he rules by whim and disobedience, it is a sin that forgiveness reaches, according to the original position of the people of the sunna on forgiving sinners.'" (Ahkam al-Qur'an, 2/127) Imam al-Qurtubi (may Allah have mercy on him) said: "Ibn Mas'ud and al-Hasan said: it is general for everyone who does not judge by what Allah has revealed, among the Muslims, the Jews and the disbelievers, that is, believing it and deeming it lawful; as for one who does so while believing he commits a wrong, he is among the defiantly disobedient of the Muslims, and his affair rests with Allah: if He wills He punishes him, if He wills He forgives him." (Tafsir al-Qurtubi, 6/190)
Imam Ibn al-Jawzi (may Allah have mercy on him) said: "As for His word (Surah al-Ma'ida, 44), then after it: 'those are the wrongdoers' (Surah al-Ma'ida, 45) and: 'those are the defiantly disobedient' (Surah al-Ma'ida, 47), the scholars differed over those concerning whom they were revealed in five views:
Two views on the disbelief mentioned in the first verse: one, that it is disbelief in Allah; the other, that it is disbelief in that ruling, without being a disbelief that removes one from the religion. The detail of the address: whoever does not judge by what Allah has revealed while rejecting it, knowing that Allah revealed it, as the Jews did, is a disbeliever; and whoever does not judge by it out of inclination to whim, without rejection, is a wrongdoer and defiantly disobedient. Ali ibn Abi Talha narrated from Ibn Abbas: 'Whoever rejects what Allah has revealed has disbelieved; whoever acknowledges it without judging by it is defiantly disobedient and a wrongdoer.' (Zad al-Masir, 2/366-367)
Shaykh al-Islam Ibn Taymiyya (may Allah have mercy on him) said: "It is obligatory upon everyone who judges between two to judge with justice, based on His word:
"And when you judge between people, judge with justice"
Surah an-Nisa, 58
no ruler may ever judge by injustice; the Law by which the rulers of the Muslims must judge is all justice, there is no injustice in the Law at all, and Allah's judgment is the best of judgments; the Law is what Allah has revealed: whoever judges by what Allah has revealed judges with justice; but justice varies according to the Laws and the methods, the justice of each Law being according to it; hence His word: 'So judge between them with justice' (Surah al-Ma'ida, 42), then the passage on judging by the Torah and the Gospel, including: 'So let the people of the Gospel judge by what Allah has revealed therein, and whoever does not judge by what Allah has revealed, those are the defiantly disobedient' (Surah al-Ma'ida, 47), up to: 'Then is it the judgment of the time of ignorance they seek? And who is better than Allah in judgment for a people who are certain?' (Surah al-Ma'ida, 50). Allah mentioned judgment by the Torah and the Gospel, then said that He revealed the Quran and commanded His prophet to judge between them by the Quran without following their whims regarding what came to him of the Book; He informed that He made for each of the prophets a Law and a way, gave Musa and Isa what the Torah and the Gospel contain of Law and way, and gave this prophet (peace and blessings of Allah be upon him) what the Quran contains, commanded him to judge by what Allah has revealed, warned him that they might tempt him away from some of what Allah revealed, informed that this is Allah's judgment, and that whoever seeks other than it seeks the judgment of the time of ignorance.
Then he said: "Doubtless, whoever does not believe in the obligation of judging by what Allah has revealed upon His Messenger is a disbeliever; whoever permits judging between people by what he sees as justice without following what Allah has revealed is a disbeliever, for no community exists but that it commands judging with justice, and justice in its religion may be what their elders saw; many of those ascribed to Islam rule by their customs that Allah did not reveal, such as the Bedouins' customs and the commands of their obeyed ones, and consider that this is what should be judged by instead of the Book and the sunna: this is disbelief; many people entered Islam yet rule only by their current customs commanded by the obeyed ones; these, if they know that judging is permitted only by what Allah has revealed and do not adhere to that, but deem lawful judging contrary to what Allah has revealed, they are disbelievers; otherwise they are ignorant, like those whose affair preceded. Allah commanded the Muslims, whenever they dispute over anything, to refer it to Allah and the Messenger: His word:
"O you who believe, obey Allah and obey the Messenger and those in authority among you; if you dispute over anything, refer it to Allah and the Messenger, if you believe in Allah and the Last Day"
Surah an-Nisa, 59
and His word:
"No, by your Lord! They will not believe until they make you judge in their disputes, then find no discomfort in what you decided and submit fully"
Surah an-Nisa, 65
whoever does not adhere to the judgment of Allah and His Messenger in what divides them, Allah has sworn by Himself that he does not believe; as for one who adheres to the judgment of Allah and His Messenger inwardly and outwardly, but disobeys and follows his whim, he is like the other disobedient ones. This verse is among those by which the Khawarij argue for the disbelief of the holders of authority who do not rule by what Allah has revealed while claiming that their belief is Allah's ruling; people spoke much about it, and the context of the verse indicates what I mentioned. The point: judging with justice is obligatory absolutely in every time and place, upon everyone and for everyone; judging by what Allah revealed to Muhammad (peace and blessings of Allah be upon him) is the particular justice, the most perfect kind of justice and the finest; judging by it is obligatory upon the Prophet and whoever follows him; whoever does not adhere to the judgment of Allah and His Messenger is a disbeliever. This is obligatory upon the community in everything they dispute of doctrinal and practical matters: His word:
"Mankind was one community; then Allah sent the prophets as bearers of good news and warners, and sent down with them the Book in truth to judge between the people concerning their differences"
Surah al-Baqara, 213
and His word:
"And in whatever you differ, its judgment is with Allah"
Surah ash-Shura, 10
and: 'if you dispute over anything, refer it to Allah and the Messenger': the matters common to the community are judged only by the Book and the sunna: no one may compel people to the view of a scholar, an emir, a shaykh or a king; whoever believes he judges between people by something of that without judging by the Book and the sunna is a disbeliever; the rulers of the Muslims judge in particular matters, not in universal ones; in the particulars they must judge by what is in the Book of Allah, otherwise by what is in the sunna of the Messenger of Allah, otherwise the ruler strives by his opinion. The Prophet (peace and blessings of Allah be upon him) said:
"The judges are three: two in the Fire and one in Paradise: the one who knows the truth and judges by it is in Paradise; the one who knows the truth and judges against it is in the Fire; and the one who judges for people in ignorance is in the Fire"Authentic hadith, reported by Abu Dawud (3573), at-Tirmidhi (1322) and Ibn Majah (2315)
And when he judges by knowledge and justice: if he strives and is right, he has two rewards; if he strives and errs, he has one, as established in the two Sahihs." (Minhaj al-Sunna, 5/128-132)
He also said: "When a man deems lawful what is prohibited by consensus, or prohibits what is lawful by consensus, or changes the Law by consensus, he is a disbelieving apostate by the agreement of the jurists; to this the verse belongs, according to one of the two views: whoever does not judge by what Allah has revealed, that is, the one who deems lawful judging by other than what Allah has revealed. The word 'Law' (shari'a) is used in people's usage in three senses:
(Majmu' al-Fatawa, 3/267-268)
Imam Ibn al-Qayyim (may Allah have mercy on him) said: "The interpretation of Ibn Abbas and most of the Companions of His word (Surah al-Ma'ida, 44): Ibn Abbas said: 'It is not a disbelief that removes one from the religion; if he does it, he is in disbelief, without being like the one who disbelieves in Allah and the Last Day.' Tawus said likewise, and Ata' said: 'It is a disbelief less than disbelief, an injustice less than injustice, an impiety less than impiety.' Among them is whoever interpreted the verse as abandoning judgment by what Allah has revealed while rejecting it: that is Ikrima's view, and it is a weak interpretation, for rejection itself is disbelief, whether he judges or not. Among them is whoever interpreted it as abandoning judgment by all that Allah has revealed, including judgment by monotheism and Islam: that is Abd al-Aziz al-Kinani's interpretation, and it too is far off, for the threat is upon negating judgment by the Revealer, covering the suspension of judgment by all of it or part of it. Among them is whoever interpreted it as judging contrary to the text knowingly, without ignorance or error of interpretation: al-Baghawi narrated it from the scholars in general. Among them is whoever applied it to the People of the Book: that is the view of Qatada, al-Dahhak and others, and it is far off, contradicting the apparent meaning of the text, and is not followed. Among them is whoever made it a disbelief that removes one from the religion. The sound position: judging by other than what Allah has revealed encompasses both the lesser and greater disbelief according to the ruler's state: if he believes in the obligation of judging by what Allah has revealed in this particular case and turns away from it in disobedience, while acknowledging he deserves punishment, it is the lesser disbelief; if he believes it is not obligatory and that he is free in it, while certain that it is Allah's ruling, it is the greater disbelief; if he is ignorant of it and errs, he falls under the ruling of the errant." (Madarij al-Salikin, 1/336-337)