Islamic Fiqh > Judgment and testimony > Judgment (qada) and its conditions > The difference between judgment (qada) and fatwa
Contents
Updated on 26 September 2026 at 7:12 PM
This part belongs to the full section: All sections of this part.
The difference between the mufti and the judge is that legal consultation (ifta) consists in explaining the legal ruling to the one who asks, without compelling him to it, whereas judgment comes with compulsion. The two meet in manifesting the ruling of the Law on the occurrence, and judgment is distinguished from the fatwa by compulsion ("Mughni al-Muhtaj" 6/282 ; "Sharh Muntaha al-iradat" 6/457).
Judgment and arbitration are each a means of settling disputes among people and of determining which of them holds the right. That is why the jurists required identical qualifications for each; but the arbitrator is of lower rank than the judge, for his ruling is restricted to the one who accepted his arbitration, unlike the judge's general authority, and the judge rules on what the arbitrator does not. That is why Abu Yusuf said: arbitration may not be suspended on a condition nor made accessory, unlike judgment, for its ruling is akin to amicable settlement (sulh), and what is executed from it is like settlement, or is a settlement in a certain respect: its like is therefore not accepted with doubt ("Sharh Fath al-qadir" 7/315 ; "al-'Inaya" 10/295 ; "Hashiyat Ibn Abidin" 5/427-428).
Judgment is legislated; the basis of judgment and its licitness is the Book, the Sunna and the consensus. As for the Book, Allah the Most High says:
"O Dawoud! We have made you a successor upon the earth, so judge between the people in truth and do not follow desire, lest it lead you astray from the way of Allah."
Surah Sad, 26
His saying likewise:
"And judge between them by what Allah has revealed."
Surah al-Ma'ida, 49
"And when they are called to Allah and His Messenger to judge between them."
Surah an-Nur, 48
"But no, by your Lord! They will not believe until they make you judge over their disputes, then find within themselves no discomfort over what you have decided, and submit in full submission."
Surah an-Nisa, 65
As for the Sunna, Amr ibn al-As heard the Messenger of Allah (peace and blessings of Allah be upon him) say:
When the judge rules and strives and reaches the truth, he has two rewards; and when he rules and strives and errs, he has one reward.Reported by al-Bukhari 6919 and Muslim 1716
The scholars said: the Muslims agreed that this hadith concerns a knowledgeable judge qualified to rule: if he reaches the truth, he has two rewards, one for his effort and one for his correctness; if he errs, he has one reward for his effort. The hadith contains an ellipsis whose meaning is: when the judge intends and strives. As for the one not qualified to rule, ruling is not lawful for him: if he rules, he has no reward; rather he is sinful, and his ruling is not executed, whether it coincides with the truth or not, for his correctness is accidental, not issuing from a legal basis; he is disobedient in all his rulings, they are all rejected, and he is not excused in any of it. A hadith of the Sunan says:
The judges are three: one judge in Paradise and two in the Fire. A judge who knew the truth and ruled by it: he is in Paradise; a judge who knew the truth and ruled against it: he is in the Fire; and a judge who ruled in ignorance: he is in the Fire.Authentic hadith; Abu Dawud 3573 ; Tirmidhi 1322 ; Ibn Majah 2315
and other hadiths besides, which will come later.
As for the consensus: the Muslims agreed on the licitness of judgment. Imam Ibn Qudama, may Allah have mercy on him, said: "The Muslims agreed on the licitness of appointing judges and of judging among the people" ("al-Mughni" 10/89).
The people of knowledge agreed that judgment is a collective obligation (fard kifaya): if some perform it, it falls from the rest. They proved its obligatory character by the Book, the Sunna, the consensus and reason. As for the Book: "And judge between them by what Allah has revealed" (Surah al-Ma'ida, 49) ; "O Dawoud! We have made you a successor upon the earth, so judge between the people in truth" (Surah Sad, 26) ; "They will not believe until they make you judge over their disputes" (Surah an-Nisa, 65) ; "Allah commands you to render trusts to whom they are due, and when you judge between people, to judge with justice" (Surah an-Nisa, 58). Allah also blamed a people who refused to be brought to judgment and praised a people who answered: "And when they are called to Allah and His Messenger to judge between them, a party of them turns away" (Surah an-Nur, 48) ; "The only word of the believers, when they are called to Allah and His Messenger to judge between them, is that they say: we hear and we obey" (Surah an-Nur, 51).
As for the Sunna: the Prophet (peace and blessings of Allah be upon him) judged among the people and sent Ali, may Allah be pleased with him, to Yemen to judge between the people. The rightly guided caliphs judged and appointed judges in the provinces: Abu Bakr, may Allah be pleased with him, sent Anas ibn Malik to Bahrain to judge between the people; Omar sent Abu Musa al-Ash'ari as judge to Basra, and sent Abdallah ibn Mas'ud as judge to Kufa.
As for the consensus: the community agreed that the imam's appointing of judges to judge between the people is among the collective obligations: if some perform it, it falls from the rest, and if no one performs it, all are sinful. This consensus has been transmitted. Imam al-Nawawi, may Allah have mercy on him, said: "Judgment and the imamate are a collective obligation by consensus: if it is performed by someone qualified, the obligation falls from the rest; if they all refuse, they are sinful, and the imam compels one of them to judge; it is also said that he is not compelled, and the correct view is the first" ("Rawdat al-talibin" 7/229). Imam al-Zarkashi said, citing al-Rafi'i: "Judgment is a collective obligation by consensus" ("al-Bahr al-muhit" 1/218). Imam Ibn Muflih, may Allah have mercy on him, said: "The Muslims agreed on appointing judges to settle between the people, and it is a collective obligation like the imamate."
Ahmad, may Allah have mercy on him, said: "People cannot do without a judge: would people's rights vanish? It is thus incumbent upon the imam to appoint a judge in every region, to choose for that the most qualified of those he can, the most fearing of Allah among them, the most pious of them, to command them the fear of Allah and the preference of His obedience in secret and in public, to seek justice and strive to establish truth, and to delegate in every region the most qualified he can" ("al-Mubdi'" 10/3-4).
As for reason: people's affairs cannot stand without judgment; it is therefore obligatory upon them, like jihad and the imamate. Injustice is a trait of souls and of the nature of the world; the poet said: "Injustice is a trait of souls: if you find one of modesty, he perhaps never wrongs." A judge is therefore needed to give the wronged his due against the wrongdoer. Judgment moreover carries the interests of the servants: prevention of the wronged and of obstinacy, the separation of disputes, the restitution of injustices, the establishment of the legal punishments, the restraint of the wrongdoer, the support of the wronged, the commanding of good and the forbidding of evil, for injustice is in the natures: a judge is therefore needed to give the wronged his due, and appointing him becomes obligatory ("al-Dhakhira" 10/6-7 ; "al-Bayan" 13/9 ; "al-Mughni" 10/89 ; "Manar al-Sabil" 3/447).
Reports have come that indicate criticism of judgment, and others that indicate its praise. As for those indicating its criticism, Abu Hurayra, may Allah be pleased with him, reported that the Prophet (peace and blessings of Allah be upon him) said:
Whoever takes charge of judgment is like one slaughtered without a knife. In another wording: the one made judge among the people has been slaughtered without a knife.Hasan hadith; Abu Dawud 3571, 3572 ; Tirmidhi 1325 ; Ibn Majah 2308
Imam al-Khattabi, may Allah have mercy on him, said: its meaning is the warning against seeking judgment and coveting it: whoever engages in it exposes himself to slaughter; let him therefore beware of it and guard against it. His saying "without a knife" carries two senses. The first: slaughter, according to apparent custom, is done with a knife; he therefore, peace be upon him, turned from what is not the apparent custom and diverted it from the ways of habit, to indicate that what he intended by this saying is what is feared for the ruin of religion, not the ruin of the body. The second sense: the merciful slaughter, by which the soul flows out, the animal is eased and delivered from long pain and its severity, is done only with the knife, for it is swift; slaughtered without a knife, it is strangling and torture. The simile was thus given to be more eloquent in warning and in falling into it ("Ma'alim al-sunan" 4/159-160).
A'isha, may Allah be pleased with her, reported that the Prophet (peace and blessings of Allah be upon him) said:
The just judge will be brought on the Day of Resurrection and will suffer the severity of the reckoning to the point of wishing he had never judged between two people in his life.Reported by Ibn Hibban in his Sahih 5055 ; weakened by al-Albani in Silsilat al-ahadith al-da'ifa 1142
The rest of the hadith of the judges: a man who ruled against the truth knowing it, he is in the Fire; the judge who does not know and destroys people's rights, he is in the Fire; and the judge who ruled by the truth, he is in Paradise. Abu Hurayra, may Allah be pleased with him, reported that the Prophet (peace and blessings of Allah be upon him) said:
Whoever seeks the judgment of the Muslims until he obtains it, then his justice overcomes his injustice, will have Paradise; and the one whose injustice overcomes his justice will have the Fire.Weak hadith; Abu Dawud 3575
Judgment is reached by the five legal statuses: it may be obligatory, recommended, permitted, disliked or forbidden.
The generality of the Maliki, Shafi'i and Hanbali jurists stated that judgment is obligatory upon a man of the people of ijtihad and trustworthiness, when there is no one else fit for judgment: it is then incumbent upon the imam to appoint him to judgment, and once appointed by the imam, acceptance is binding upon him; if he refuses, he is compelled.
The Hanafis said: judgment becomes obligatory when it falls to him alone and there is no one else fit, for if he does not do it, judgment would be lost: his acceptance then falls under commanding good and forbidding evil, and restoring the wronged against the wrongdoers, and it is a collective obligation. Seeking judgment is likewise obligatory upon him when there is no one else fit, to preserve the rights of the Muslims and repel the injustice of the wrongdoer ("al-Ikhtiyar" 2/97-98 ; "al-Fatawa al-hindiyya" 3/306 ; "Hashiyat Ibn Abidin" 5/633).
The Malikis said: acceptance of authority and seeking it are obligatory in three cases. First: when he is uniquely qualified, that is, the only one fulfilling the conditions of judgment: he is then not permitted to refuse; if the imam requests it, acceptance is binding upon him, and if he refuses, he is compelled, even by beating and imprisonment. Second: the one who fears tribulation (fitna) for himself, his wealth or his child, even if not uniquely qualified should he not take up the office. Third: the one who fears that a right will be lost to its owners because of another's appointment, that other being one whose authority is forbidden: if he does not accept it, people's rights are lost, and the office then binds him.
Likewise, if judgment is in the hands of one whose remaining in office is not lawful and there is no way to remove him except by taking up that authority oneself: it becomes obligatory to step forward for it and strive for it, if the seeking aims at preserving rights and the carrying out of rulings in accordance with the Law, for by attaining it a collective obligation is fulfilled. Al-Dardir mentioned that he is not harmed, in that case, by spending money to seek the office, when it falls to him alone, or when he fears tribulation or the loss of a right should he not take it, for it is for a matter obligatory upon him. It is said: that money is not lawful for him, for spending money on judgment is falsehood.
If judgment does not fall to him alone, because he does not alone fulfill the conditions of judgment and there exists someone like him, without his fearing tribulation or the loss of a right to its owners, acceptance and seeking are not binding upon him: if the imam appoints him to judgment, he may flee that office, even though it is among the collective obligations, for all collective obligations become obligatory by the imam's appointment, except judgment: it does not become obligatory by the imam's appointment, and opposing him is permitted, due to the great danger it carries for the religion ("Tabsirat al-hukkam" 1/14 ; "al-Taj wa-l-iklil" 5/55 ; "Mawahib al-jalil" 8/71 ; "Sharh Mukhtasar Khalil" 7/140 ; "al-Sharh al-kabir with the hashiya of al-Dasuqi" 6/5-6 ; "Tahbir al-Mukhtasar" 5/55).
The Shafi'is said: if there is a man of the people of ijtihad and trustworthiness, and there is no one else fit for judgment, it is incumbent upon the imam to appoint him to judgment; once the imam appoints him, acceptance is binding upon him, and if he refuses, he is compelled. If the imam does not know him, it is incumbent upon him to inform the imam of his state and offer himself for judgment, for that falls under commanding good and forbidding evil, even if only one person is fit for commanding good and forbidding evil: it then becomes obligatory upon him. Seeking judgment is binding upon him when no one else is fit, and he is not excused by fear of leaning: he must seek, accept and guard against leaning, like the other personal obligations. If his seeking depends on spending money, it is incumbent upon him to spend that money to become judge, just as buying a slave for expiation or food in famine is incumbent upon him: this is the famous view. Al-Mawardi said: "He is not required to seek it, for appointment belongs to the imam."
Ibn al-Rif'a said: "Perhaps, if the imam knows of it, otherwise he must inform him; on this basis, spending money is recommended but not obligatory." All this if the office is not offered to him; if it is offered to him, acceptance is binding without disagreement ("al-Bayan" 13/11-12 ; "al-Najm al-Wahaj" 10/138 ; "Mughni al-Muhtaj" 6/284 ; "Tuhfat al-Muhtaj" 12/73-74).
The Hanbalis said: the one fit for judgment when no one else exists, it falls to him alone, for it is a collective obligation that none other can fulfill: it becomes obligatory upon him like washing the deceased and shrouding him. Ibn Qudama, may Allah have mercy on him, said: "What is reported from Ahmad indicates that it does not fall upon him alone: he was asked: does the judge sin when no one else is found? He said: he does not sin. This can be understood according to its letter as meaning that it is not obligatory upon him, given the danger it carries for himself: harming oneself for the benefit of others is not required of him; that is why Abu Qilaba refused it, though told: there is no one but you. It may also be understood of one unable to fulfill the obligation, due to the ruler's injustice or otherwise. Ahmad did indeed say: People cannot do without a judge: would people's rights vanish?!" ("al-Mughni" 10/9 ; "Kashshaf al-Qina'" 6/364 ; "Sharh Muntaha al-iradat" 6/463).
The jurists stated that judgment is recommended for certain people. The Hanafis said: "It is recommended to take up judgment when someone fit exists, but the first is safer and firmer in its exercise" ("al-Ikhtiyar" 2/97-98 ; "al-Fatawa al-hindiyya" 3/306). The Malikis said: "Seeking judgment is recommended for a mujtahid whose knowledge is hidden from the people and who would strive in judgment so that the place of his knowledge be known: it is recommended for him to attain that and to enter it with this intention. Likewise if there is a scholar whose knowledge is hidden from the people and the imam wants to make him known through the authority of judgment, to teach the ignorant and answer the one seeking counsel. Or if he is unable to provide for himself and his dependents except by the income of judgment: seeking judgment is recommended for him" ("Tabsirat al-hukkam" 1/14 ; "al-Taj wa-l-iklil" 5/55).
The Shafi'is said: "Seeking judgment is recommended if he is obscure and the people do not come to him for fatwa and teaching: judgment is recommended for him so that he becomes known among the people and his knowledge be benefited from. Or if he is not obscure but needs an income and hopes, through judgment, to receive his provision from the public treasury: seeking judgment is recommended for him, for he must have an earning, and his earning through an act of obedience is better than his earning otherwise. Seeking is also recommended when rights are being lost to injustice or incapacity, or rulings have been corrupted by appointing an ignoramus: he seeks it to remedy that. Allah the Most High informed about His prophet Yusuf, peace and blessings of Allah upon him, that he sought:
"Appoint me over the storehouses of the land: indeed, I am a knowing guardian."
Surah Yusuf, 55
and he sought that only out of compassion for the creatures of Allah, not for his own benefit. As for the one for whom holding judgment is recommended when called to it: are seeking and spending a compensation recommended for him? There are two views."
Some said: seeking it is recommended for him, by Allah's word reporting the request of Yusuf: "Appoint me over the storehouses of the land: indeed, I am a knowing guardian" (Surah Yusuf, 55), for he sought the trust. Spending a compensation is permitted to him, for it is the means to reach what he seeks. Others said: it is not recommended for him, and he may not spend a compensation, based on what is reported: the Prophet (peace and blessings of Allah be upon him) said to Abd al-Rahman ibn Samura: "O Abd al-Rahman! Do not ask for authority: if it is given to you upon your asking, you are entrusted with it; if it is given to you without asking, you are aided." Anas reports that the Prophet (peace and blessings of Allah be upon him) said: "Whoever seeks judgment and seeks aid for it is left to himself; and whoever does not seek judgment nor aid for it, Allah sends down to him an angel to support him." Those holding the first view applied the report to the one who seeks it out of love of precedence; if he seeks it for nearness to Allah or to secure his sustenance, it does him no harm ("al-Bayan" 13/13-14 ; "al-Najm al-Wahaj" 10/141-142 ; "Mughni al-Muhtaj" 6/286).
The Hanafis said: "Judgment is permitted and one is free to choose when he is the equal of others in qualification and ability to perform it: he is free to accept if he wills, or to refuse if he wills" ("al-Ikhtiyar" 2/97-98 ; "al-Fatawa al-hindiyya" 3/306). The Shafi'is and the Hanbalis said: "Judgment is permitted when he is able to perform it, but someone else exists." The Shafi'is said: what makes judgment not obligatory while remaining permitted is that there exist two men or a group each of whom is fit for judgment: judgment is then not obligatory upon any one of them in particular, but their obligation is collective; if one of them performs it, the obligation falls from the rest, and if they all refrain, they are sinful, based on what is reported from the Prophet (peace and blessings of Allah be upon him): "Allah does not sanctify a community in which there is no one who takes for the weak his right."
If the imam wants to appoint one of them, does judgment become obligatory upon him by the imam's appointment? And may the imam compel him? There are two views. The first: it becomes obligatory upon him and the imam may compel him, for he was called to an obligation which thus becomes obligatory upon him; and if he refuses, the others may refuse too, which would lead to the paralysis of judgment. The second: it does not become obligatory upon him and he cannot be compelled; for if it were said that it becomes obligatory upon him and he may be compelled, judgment and retribution would become obligatory upon him.
As for the one for whom entering judgment is permitted without being obligatory, is judgment recommended for him when called to it? It is examined: if he has wealth sufficient for him and is well known, with people coming to him for fatwa and teaching, it is not recommended for him, for he is not safe from error on his own account, and it is better for him to devote himself to fatwa and teaching.
The continuation of the Shafi'i view: for that is safer. On this basis is interpreted Ibn Omar's refusal when Othman called him to judgment. It is likewise reported that "Abu Dharr was sought for judgment and fled; he was told: were you appointed and you judged with the truth? He said: the one who falls into the sea, how far does he swim?". If he has no wealth sufficient for him and hopes, through judgment, to receive his provision from the public treasury, judgment is recommended for him, for he must have an earning, and his earning through an act of obedience is better than his earning otherwise. Likewise if he has wealth sufficient for him but is obscure, with people not coming to him for fatwa and teaching: judgment is recommended for him so that he becomes known among the people and his knowledge be benefited from. The Hanbalis said: "Seeking judgment is permitted when the one performing it is not fit for judgment; likewise the one fit for judgment while someone else of like qualification exists: he may take it up without entering judgment being obligatory upon him, for it does not fall to him alone" ("al-Bayan" 13/12-13 ; "Kashshaf al-Qina'" 6/365 ; "Sharh Muntaha al-iradat" 6/464).
The jurists stated that judgment is disliked in certain cases. The Hanafis said: "Judgment is disliked when he is fit for judgment but another is firmer and safer in its exercise. His striving to seek judgment in order to gain renown and precedence over people is also disliked: the striving is disliked to him for that, and if it were said that it is forbidden, that meaning would be apparent, by Allah's saying:"
"That home of the Hereafter We assign to those who desire no exaltedness upon the earth nor corruption; and the [best] outcome is for the righteous."
Surah al-Qasas, 83
"It is also disliked if he is independent of the income drawn from judgment and is well known, having no need to make himself and his knowledge known through judgment" ("Mu'in al-hukkam" 1/10 ; "al-Ikhtiyar" 2/98).
The Malikis said: "His striving to seek judgment is disliked in order to gain renown and precedence over people: the striving is disliked to him for that, and if it were said that it is forbidden, that meaning would be apparent, by Allah's saying: 'That home of the Hereafter We assign to those who desire no exaltedness upon the earth nor corruption' (Surah al-Qasas, 83). It is also disliked if he is independent of the income drawn from judgment and is well known, having no need to make himself and his knowledge known through judgment; and it is possible to attach this to the category of the permitted" ("Tabsirat al-hukkam" 1/15 ; "Mawahib al-jalil" 8/74).
The Shafi'is said: "If he is not obscure but famous, and has no need of an income but is self-sufficient, it is better for him to forgo seeking judgment, if he is among the people of modesty and trust, self-sufficient and known for knowledge, to whom people turn for fatwas: it is better for him to devote himself to spreading knowledge and fatwa, because of the dangers that judgment carries. On this basis is interpreted the refusal of those of the righteous predecessors who refused appointment to judgment."
It is said: seeking and accepting the appointment are then disliked as well, for a specific prohibition came concerning it, and upon it are interpreted the reports of warning and the predecessors' refusal. It is said: there is no dislike in seeking or accepting, but both are contrary to what is better. The Hanbalis said: "Seeking judgment is disliked while someone fit for it exists" ("al-Najm al-Wahaj" 10/142 ; "Mughni al-Muhtaj" 6/286 ; "Tuhfat al-Muhtaj" 10/76 ; "Kashshaf al-Qina'" 6/365 ; "Sharh Muntaha al-iradat" 6/464).
Fifth status: for whom holding judgment is forbidden. The jurists stated that it is forbidden to take up judgment for the one who knows of himself his incapacity for it and his lack of fairness, because of what he knows of his inner self of following passion that the people do not perceive: it becomes forbidden to him. It is likewise forbidden to the one who fears wronging, that is, being unjust and oppressive to others, lest it become an avenue to injustice ("al-Ikhtiyar" 2/98 ; "al-Bahr al-ra'iq" 6/294 ; "Durrar al-hukkam" 8/370 ; "Hashiyat Ibn Abidin" 5/367).
The Hanafis and the Malikis said: "It is forbidden to seek judgment while being ignorant, without qualification for judgment, or while being among the people of knowledge yet afflicted with what makes one a sinner, or when the aim of authority is to take revenge on one's enemies or to accept bribes from litigants and the like of such aims: striving for judgment is then forbidden to him" ("Mu'in al-hukkam" 1/10 ; "Tabsirat al-hukkam" 1/15).
The Shafi'is said: "Holding judgment is forbidden to the one who is not of the people of ijtihad, or who is of them but is a sinner: judgment is then not lawful for him; if the imam appoints him, his authority does not take effect, and if he rules, his ruling is not valid. It is likewise forbidden if he aims at revenge upon his enemies or at gain through bribery." Al-Khatib al-Shirbini, may Allah have mercy on him, said: he counted among the disliked seeking it for license and precedence, and ostentation in it; some went as far as forbidding it because of the reports indicating that, and that is the apparent meaning ("Mughni al-Muhtaj" 6/287 ; "al-Bayan" 13/12).
The Hanbalis said: entering judgment is forbidden to the one who does not master it and does not fulfill its conditions. It is reported from the Prophet (peace and blessings of Allah be upon him) that he said:
The judges are three: two in the Fire and one in Paradise. A man who ruled against the truth knowing it: he is in the Fire; a judge who does not know and destroys people's rights: he is in the Fire; and a judge who ruled by the truth: he is in Paradise.Authentic hadith; Abu Dawud 3573 ; Tirmidhi 1322 ; Ibn Majah 2315
He mentioned among them a man who judged among the people in ignorance: he is in the Fire; for the one who does not master judgment cannot be just in it: he takes the right from its owner and gives it to another. Recommending such a person and helping him be appointed is forbidden, for it is aiding disobedience. Likewise, seeking judgment is forbidden when the one performing it is fit for judgment and fit for it, even if the seeker is fit, for it harms the one performing it; if the one performing it is not fit, it is permitted for the fit man to seek it without money ("al-Mughni" 10/90 ; "Kashshaf al-Qina'" 6/365 ; "Sharh Muntaha al-iradat" 6/465 ; "Mutalib uli al-nuha" 6/457).
The jurists agreed that the one not fit for judgment is forbidden to pay a bribe to be installed as judge, and his judgment then has no effect. Imam al-Suyuti, may Allah have mercy on him, said: "If he obtains judgment through a bribe, he does not become a judge, by consensus" ("Jawahir al-'uqud" 2/290).
The Hanafis said: "If he obtains judgment through a bribe, that is, by money paid for his appointment, his appointment is not valid, he does not become a judge, and if he rules, it is not executed" ("Tabyin al-haqa'iq" 4/175-176 ; "al-Bahr al-ra'iq" 6/284 ; "Hashiyat Ibn Abidin" 5/363 ; "Mu'in al-hukkam" 1/9). Imam al-Tarabulusi the Hanafi, may Allah have mercy on him, said regarding obtaining judgment through a bribe: it is said in "al-Khulasa": "Whoever obtains judgment through a bribe: the correct view is that he does not become a judge, and if he rules, his ruling is not executed; on this basis the imam is given the fatwa. If he is appointed against a bribe that he himself took, or that people took knowing of it, his appointment is not valid, like his ruling through a bribe." He said in "al-Nawazil": "Whoever obtains judgment through a bribe or through intermediaries is like an arbitrator: if he carries his ruling to another judge, the latter confirms it if he approves his opinion, otherwise he annuls it. The one who obtains through a bribe: his ruling is not executed, without any need to overturn it; the one who obtains through intermediaries is like the one holding judgment legitimately: if he takes a bribe and rules, his ruling is executed in what he took no bribe over, not in what he took a bribe over." It is said in "Nawadir Ibn Rustum": "the two are executed," and some shaykhs said: "the two are annulled"; al-Sarakhsi, the sun of the imams, held the first. If his son or some of his agents take a bribe: if they act by his order and with his consent, it is like his own bribe: his ruling is rejected; if they act without his knowledge, his ruling is executed, and the one who took the bribe must return what he took. If he takes a bribe and then rules, or rules and then takes one, or his son takes one, or someone whose testimony is not accepted takes one, his ruling is not executed, for he acted for himself or for his son ("Mu'in al-hukkam" 1/9).
As for the Malikis, Ibn Farhun, may Allah have mercy on him, said: "Obtaining judgment through a bribe is strongly disliked." Abu al-Abbas, among the disciples of Ibn Surayj among the Shafi'is, said in his book "Adab al-qada": "Whoever accepts judgment against a lease and receives a bribe, his authority is null and his ruling rejected, even if he ruled justly. If he receives a bribe for the removal of a judge in order to be appointed in his place, the same applies. And if he pays it for his own removal without authority, and the first is removed through a bribe, then he seeks to be appointed in his place without a bribe: the removed one is examined; if he was just, paying a bribe for his removal is forbidden and the removed one remains in his authority, unless the one who removed him repented by returning the bribe before the removal. The ruling of the replacement is likewise null, unless the replacement also repented before the authority, and his ruling is then valid; if the removed one was unjust, the ruling of the replacement is not null." The author, Abu al-Abbas, said: this is a takhrij upon the doctrine of al-Shafi'i and al-Hanafi, may Allah have mercy on them both ("Tabsirat al-hukkam" 1/13 ; "Mawahib al-jalil" 8/73-74 ; "Minh al-jalil" 8/269).
The jurists disagreed over the case of one who pays the bribe or the money while truly deserving judgment, but who cannot reach the office of judge except by paying the bribe: is he permitted to spend money to obtain judgment, or is it forbidden to him in all cases? The majority of the jurists, the Hanafis, Malikis and Shafi'is in general terms, stated a detailed distinction that will come: the payment of money and of the bribe is permitted when judgment falls to him alone and he can only take it up through a bribe.
Ibn Nujaym the Hanafi, may Allah have mercy on him, said: "I have not found the ruling on the case where judgment falls to him alone, that is, becomes obligatory upon him, and he is only appointed with money: is the payment lawful? Likewise, I have not found the ruling on the lawfulness of removing him. The spending of money ought to be lawful as seeking it is lawful, and his removal ought to be forbidden where judgment falls to him alone, and his removal ought not to be valid" ("al-Bahr al-ra'iq" 6/297-298). Imam Ibn Abidin, after citing Ibn Nujaym's words, may Allah have mercy on him, said: "It is said in 'al-Nahr': this is explicit on the validity of his appointment; and the absolute statement of the author, meaning his words 'if he obtains judgment through a bribe, he does not become a judge,' refutes it. As for the invalidity of his removal, that is excluded" ("Hashiyat Ibn Abidin" 5/366).
As for the Malikis, Imam al-Dardir, may Allah have mercy on him, holds that spending money to seek judgment is permitted in three cases. The first: that judgment fall to him alone. The second: that he fear tribulation for himself, his wealth or his child, even if he is not uniquely qualified should he not take up the office. The third: that he fear the loss of a right to its owners because of another's appointment, that other being one whose authority is forbidden: if he does not accept it, people's rights are lost and the office binds him. Al-Dardir said: "He is not harmed by spending money to seek it at that time, for it is for a matter obligatory upon him." Imam al-Dasuqi, may Allah have mercy on him, said: his saying "he is not harmed by spending money to seek it at that time" means: at the moment when judgment falls to him alone, or when he fears tribulation or the loss of a right should he not take up the office. In the Bun, the shaykh al-Misnawi said: Ibn Marzuq said: seeking is incumbent upon him if not with money, and some people went to excess, like 'Uj and those who followed him, saying: "even with money." In the Hashiya, the text says: consider, if it is said that seeking is incumbent upon him, the case of one who seeks and is prevented from appointment except by spending money: is the payment permitted to him? The apparent is that it is not permitted to him, for they said: acceptance is binding upon him only when judgment falls to him alone if he is aided toward the right, and spending money on judgment is falsehood from whose abandonment one is not aided: it is therefore forbidden at that time ("Hashiyat al-Dasuqi with al-Sharh al-kabir" 6/6).
The Shafi'is said: "If his seeking of judgment depends on spending money and judgment is obligatory upon him, it is incumbent upon him to spend the money to become judge, just as buying a slave for expiation and food in famine is incumbent upon him. As for the one for whom holding judgment is recommended when called to it: are seeking and spending a compensation recommended for him? There are two views. Some said: seeking it is recommended for him, by Allah's word reporting the request of Yusuf: 'Appoint me over the storehouses of the land: indeed, I am a knowing guardian' (Surah Yusuf, 55), for he sought the trust; and spending a compensation is permitted to him, for it is the means to reach what he seeks. Others said: it is not recommended for him and he may not spend a compensation, based on what is reported: the Prophet (peace and blessings of Allah be upon him) said to Abd al-Rahman ibn Samura: 'O Abd al-Rahman! Do not ask for authority: if it is given to you upon your asking, you are entrusted with it; if it is given to you without asking, you are aided.' Anas reports that the Prophet (peace and blessings of Allah be upon him) said: 'Whoever seeks judgment and seeks aid for it is left to himself; the one who does not seek judgment nor aid for it, Allah sends down to him an angel to support him.' Those holding the first view applied the report to the one who seeks it out of love of precedence; if he seeks it for nearness to Allah or to secure his sustenance, it does him no harm" ("al-Bayan" 13/11-12 ; "al-Najm al-Wahaj" 10/138 ; "Mughni al-Muhtaj" 6/284-286 ; "Tuhfat al-Muhtaj" 12/73-74).
As for the Hanbalis, they hold that spending money to obtain judgment is forbidden in all cases, and it is forbidden for the one to whom money was paid in judgment to take it, for it falls under consuming people's wealth unjustly ("Kashshaf al-Qina'" 6/365 ; "Sharh Muntaha al-iradat" 6/464 ; "Mutalib uli al-nuha" 6/456).