the judiciary of islam

The Khilafah’s judiciary is responsible for issuing judgments that are enforced by the state. Its responsibility covers three main areas:

1. Settling disputes between people
2. Preventing whatever may harm the rights of the community
3. Settling the disputes between people and any person who is part of the government, whether the Khaleefah, his cabinet, civil servants or any other person.1

Types of Judges
There are three types of judges each responsible for one of the areas above.2

1. Qadi (judge) - responsible for setting disputes between people
2. Muhtasib (inspector) – responsible for settling any breach of law that may harm the rights of the community
3. Qadi Mazalim (Government Investigations Judge) – responsible for settling disputes between the people and the government

The Qadi
The evidence for the Qadi is derived from the actions of the Prophet (saw) when he appointed Mu’adh ibn Jabal to Yemen as a Qadi.

Narrated Mu’adh ibn Jabal: Some companions of Mu’adh ibn Jabal said: When the Messenger of Allah (saw) intended to send Mu'adh ibn Jabal to the Yemen, he asked: “What will you do if a matter is referred to you for judgement?” Mu’adh said: “I will judge according to the Book of Allah.” The Prophet asked: “What if you find no solution in the Book of Allah?” Mu’adh said: “Then I will judge by the Sunnah of the Prophet.” The Prophet asked: “And what if you do not find it in the Sunnah of the Prophet?” Mu'adh said: “Then I will make Ijtihad to formulate my own judgement.” The Prophet patted Mu’adh’s chest and said “Praise be to Allah who has guided the messenger of His Prophet to that which pleases Him and His Prophet.”3

There are seven conditions for the post of Qadi.4 These are:

1. Muslim
2. Free
3. Mature
4. Sane
5. Just (‘Adl)
6. Faqih (learned scholar)
7. Aware of how to apply the rules to the events

Therefore the Qadi can be a man or a women.

The Qadi can only pass judgment in a judicial court. This is derived from the following hadith.

Narrated Abdullah ibn az-Zubayr: “The Messenger of Allah has ordered that the two disputing parties should sit before the judge.”5

The Presumption of Innocence exists in an Islamic judicial court where the defendant is innocent until proven guilty. The responsibility of providing the evidence is on the plaintiff (the one who initiates the law suit) not the defendant. This is derived from the following hadith.

The Messenger of Allah (saw) said: “It is the plaintiff who should provide the evidence, and the oath is due on the one who disapproves.”6

Different types of courts can be established depending on the case. There can be specialist courts for financial disputes or family disputes. There can also be different levels of courts depending on the nature of the crime. Al-Mawardi mentions the following example from Basra in Iraq.

Abu ‘Abdullah Az-Zubayri said; ‘For sometime, the ‘Umara here in Basra used to appoint a judge at the central Masjid (Al-Masjid Al-Jami’), and they called him the judge of the Masjid. He used to judge in disputes involving sums not exceeding twenty Dinars and two hundred Dirhams, and he used to impose Nafaqah (maintenances). He would not exceed his boundaries nor the duties entrusted to him.’7