The Book of the Judiciary

اْلقَضَاءِ

The Book of Dhihar

Glossary


The Book of the Judiciary

It is a farḍ kifâyah. The imam must appoint enough qualified judges; those who are qualified must accept the positions if they are asked and there are no others to replace them. If there are others (who are qualified), then it is better for one to avoid it. 1714 Its prerequisites include being a free Muslim man1715 with intact hearing, vision, and speech, who is trustworthy and knowledgeable.

وَهُوَ فَرْضُ كِفَايَةٍ، يَلْزَمُ اْلإِمَامَ نَصْبُ مَنْ يُكْتَفِى بِهِ فِيْ اْلقَضَاءِ، وَيَجِبُ عَلىٰ مَنْ يَصْلُحُ لَهُ، إِذَا طُلِبَ وَلَمْ يُوْجَدْ غَيْرُهُ، اْلإِجَابَةُ إِلَيْهِ. وَإِنْ وُجِدَ غَيْرُهُ، فَاْلأَفْضَلُ تَرْكُهُ. وَمِنْ شَرْطِهِ أَنْ يَكُوْنَ رَجُلاً، حُرًّاً، مَسْلِمًا،

1713. (A/SM & Iqnâ‘): The covenant with his women and children is not terminated even if he takes them to the abode of war.

1714. This is because of the great risk one takes by accepting the position of a judge. The Messenger of Allah (SA) said:

“Judges are of three types; one will go to paradise and two to hell. The one who will go to paradise is a man who knows what is right and judges accordingly. The man who knows what is right but transgresses in his judgment will go to hell, and the man who judges between people while he is ignorant will go to hell.” (D,T,N,Ma. Al-Ḥâkim:S)

الْقُضَاةُ ثَلاَثَةٌ وَاحِدٌ فِي الْجَنَّةِ وَاثْنَانِ فِي النَّارِ فَأَمَّا الَّذِي فِي الْجَنَّةِ فَرَجُلٌ عَرَفَ الْحَقَّ فَقَضَى بِهِ وَرَجُلٌ عَرَفَ الْحَقَّ فَجَارَ فِي الْحُكْمِ فَهُوَ فِي النَّارِ وَرَجُلٌ قَضَى لِلنَّاسِ عَلَى جَهْلٍ فَهُوَ فِي النَّارِ.

1715. (A) + (+M, +S): A woman cannot be a judge in any branch of the judiciary. (-H): She may be a judge in all cases except ḥudood and qiṣâṣ.

(-Muhammad ibn al-Ḥasan, -aṭ-Ṭabari, -Z): She may be a judge in all cases.

The first position is the position of the vast majority. They cite, among other evidence, the fact that the Prophet (SA) and his successors never appointed a woman judge. It is important to note, however, that the scholars do not claim that this ruling has anything to do with spiritual deficiency. In fact, Ibn al-Qayyim clearly states in aṭ-Ṭuruq al-Ḥukmiyah:

سَمِيْعًا، بَصِيْرًا، مُتكَلِّمَاً، عَدْلاً، عَالِمًا.

He may not accept a bribe, nor may he accept a gift from someone who was not in the habit of giving him gifts before. He may not judge before knowing the truth, and if he has any difficulty, he should consult with the people of knowledge and trustworthiness.
He must not pass any judgment while he is angry or in any condition that will prevent him from fully employing his intellect.

وَلاَ يَجُوْزُ لَهُ أَنْ يَقْبَل رِشْوَةً، وَلاَ هَدِيَّةً مِمَّنْ لَمْ يَكُنْ يُهْدِيْ إِلَيْهِ، وَلاَ اْلحُكْمُ قَبْلَ مَعْرِفَةِ اْلحَقِّ، فَإِنْ أَشْكَلَ عَلَيْهِ، شَـاوَرَ فِيْـهِ أَهْـلَ اْلعِلْـمِ وَاْلأَمَـــانَةِ. وَلاَ يَحْكُـمُ وَهُوَ غَضْبَانُ، وَلاَ فِيْ حَالٍ يَمْنَعُ اسْتِيْفَاءَ الرَّأْي.

He must not use a doorman for the courtroom. He must treat the two litigants equitably in terms of admission into his room, seating, and the manner in which he addresses them.

وَلاَ يَجُوْزُ لَهُ أَنْ يَقْبَل رِشْوَةً، وَلاَ هَدِيَّةً مِمَّنْ لَمْ يَكُنْ يُهْدِيْ إِلَيْهِ، وَلاَ اْلحُكْمُ قَبْلَ مَعْرِفَةِ اْلحَقِّ، فَإِنْ أَشْكَلَ عَلَيْهِ،وَلاَ يَتَّخِذُ فِيْ مَجْلِسِ اْلحُكْمِ بَوَّابًا، وَيَجِبُ عَلَيْهِ اْلعَدْلُ بَيْنَ اْلخَصْمَيْنِ فِيْ الدُّخُوْلِ عَلَيْهِ، وَالْمَجْلِسِ، وَالْخِطَابِ.

“And the trustworthy woman is like the trustworthy man in terms of truthfulness, honesty, and religiosity.”

والمَرْأَةُ العَدْلُ كالرَّجُلِ في الصِّدْقِ والأمَانَةِ والدِّيانَةِ.

It is not due to intellectual deficiency either. It is known that a woman could be a mufti, which is even higher than a judge or imam; in fact, the judges ask the muftis about matters that are unclear to them.

According to the group of scholars who rejected the appointment of women as judges, the wisdom behind this is related to experience and wit in the matters of dispute, financial or criminal. Also, the judge is required to be present among men’s gatherings and to mix with disputants and witnesses, and he may need to be alone with them. Islam seeks to protect women and preserve their honor and dignity. Finally, women are designed to fulfill their main mission in life, which is motherhood. This means that they were endowed with more emotions than men and more likely to be affected by these emotions.

The Book of the Judiciary

( Page : no 172)