Judgment (qada) and its conditions

Legality and status

The qada is lawful by the Book, the Sunna and the consensus: Allah orders "judge between them by what Allah has sent down" (sura al-Ma'ida 49), "O David, We made you a successor on earth: judge between the people with the truth" (sura Sad 26) and "Allah commands you to render the trusts to their owners and, when you judge between the people, to judge with justice" (sura an-Nisa 58). The Muslims agree: the qada is a collective obligation; performed by some, it falls from the others. It differs from the religious consultation: the fatwa explains the rule without compelling, the judgment compels; and from arbitration: the arbitrator is of a lower rank and his authority remains limited to those who chose him.

"A man who judged without equity while knowing it is in the Fire; a judge who does not know and destroys the rights of the people is in the Fire; a judge who judged with justice is in Paradise."Abu Dawud 3573 ; Tirmidhi 1322 ; Ibn Majah 2315

The five statuses of accepting the post

• Obligatory: for the one who is the only qualified; Malikis, Shafi'is and Hanbalis state it textually; Hanafis: when the appointment falls to him and no other is capable; the ruler must then appoint him and impose acceptance upon him.
• Recommended: for the capable when others exist.
• Permitted: for the capable, case by case.
• Disliked: for the one who fears to wrong or fears his inclinations.
• Forbidden: for the one who knows his incapacity or follows his desires; Hanafis and Malikis: it is forbidden to seek the post while ignorant, while displaying a facade of piety, to take revenge on one's enemies or to receive bribes.

The judgment against the absent

Hanafis: no judgment against the absent, for he may accept or deny, unless someone stands in his place, an agent or a delegate of the judge. Other schools admit it: the exposition of the pillars of judgment provides for the right established upon a deceased or an absent by testimony followed by the oath of verification.

The judgment of the woman and the non-Muslim

Maleness divides: the majority make it a condition of validity (Ibn Rushd); Abu Hanifa permits the woman to judge financial matters; at-Tabari permits it in all; Hanafis: the judgment of the woman is valid everywhere except the legal punishments and retaliation, in the image of her testimony. Shafi'is: al-Ramli reports that the judgment of the woman or the non-Muslim appointed by an established power is executed so as not to paralyze the interests; Ibn as-Salah retains the condition of Islam for the one who holds the power, while citing the community's agreement on executing the judgments even of unjust rulers.

Practical note

Judgment is not a privilege but a burden: whoever feels incapable must abstain, and the only capable one must not refuse. These rules protect the litigants before protecting the judges.