The judge (qadi): qualification, remuneration and independence

The legal conditions of the judge

• Majority: agreement of the scholars: "Seek refuge with Allah against the head of the seventy and the command of children" (reported by Abu Hurayra); the child is governed, he does not govern.
• Freedom: agreement of the four schools; the slave, incomplete in governing himself, does not govern others.
• Maleness: the majority make it a condition; Abu Hanifa permits the woman for financial matters; at-Tabari without restriction; Hanafis: everywhere except punishments and retaliation.
• Equity: required by the majority of the jurists (Malikis, Shafi'is, Hanbalis); if the appointed judge is sinful, the execution of his judgment remains discussed when he does not overstep the limits of the Law.
• Knowledge: Hanafis do not require it but prefer it; the judge without ijtihad rules according to the fatwa of another scholar. Ibn Abidin settles the practice: the judgment of every judge appointed by an established power is executed, even if ignorant or sinful, so as not to paralyze people's interests.
• Integrity of the senses: seeing, hearing, speaking, agreement of the scholars; Qadi Iyad writes that hearing and speech were never a matter of disagreement.

Remuneration and corruption

Text of most of the scholars: the judge in need takes an allocation from the public treasury of the Muslims; outside need, divergence exists, but the agreement bears on this: the fee taken from the parties is not permitted. Umar said: "It does not befit the judge of the Muslims to take a fee for his judgment" (reported in Al-Mughni); if he has no allocation, he may ask the two parties to provide him an income, with divergence on its validity. Whoever buys the post with money does not become a judge and his judgment is not executed: as-Suyuti writes that whoever obtains the post by corruption does not become a judge by consensus.

Judging in anger

Agreement of the scholars: the judge does not judge in anger, he waits for calm to return so as to preserve the judgment from error.

"A judge does not judge between two persons while angry."al-Bukhari 3739 ; Muslim 1717

Appointing the less qualified

The principle: appoint the most apt. If no absolute mujtahid exists: the appointment of the less qualified is valid among the majority (Malikis, Shafi'is, Hanbalis, and the meaning retained among Hanafis), for the supererogation of merit does not enter the conditions of eligibility; the Companions founded mosques next to those of the most eminent without anyone objecting. If an absolute mujtahid exists: many Malikis invalidate the appointment of a follower; the retained position of the madhhab validates it.

Judging by other than the revelation

No disagreement among the jurists on the prohibition of judging by other than what Allah has sent down; the Quran labels the one who does it impious, unjust or disbelieving according to the cases (sura al-Ma'ida 44-47).

Practical note

The list of conditions brings the judge back to a simple requirement: be able to state the right. Public remuneration, refusal of the parties' gifts, inner calm: three safeguards that remain the standard of every arbitrator today.