Principles of the Islamic Political System: The Judicial System

Perhaps the most important factor in the stability of any nation, after a strong executive power that may bring peace, is a fair and just judicial system that protects the rights and property of the people. The Islamic political theory has also touched on the matter of justice, its importance and its formation.

AlMawerdy, in his book AlAhkam AlSultaniya, addressed the topic of the judicial system in the chapter On the Mandate of the Judiciary (Position). ElMawerdy states that it is not permissible for anyone to assume a judiciary position unless he has fulfilled the 7 conditions for it. The 7 conditions he lists for the position of a judge are:

1. The individual must be a man: He must be a male and he must have passed the stage of puberty. ElMawerdy mentions, however, that Abu Hanifa stated that a woman may be a judge in the instances in which a woman’s testimony is accepted, and that she may not be a judge instances in which a woman’s testimony is not accepted.
2. The individual must be sane and rational.
3. The individual must be a free.
4. The individual must be a Muslim. With regards to this condition, ElMawerdy states that it is not permissible for a disbeliever to take up a judicial position neither over Muslims nor over disbelievers. Yet he also states that Abu Hanifa did allow disbelievers to take up judicial positions among people of his own faith. (i.e. a Christian being a judge between Christians, a Jew being a judge between Jews)
5.  The individual must be just: He must be honest, trustworthy, controlled when both during times of anger and satisfaction, as well as other traits that suggest the man has a good sense of justice and fairness.
6. The individual must be free of defects in his hearing and vision
7. The individual must be knowledgeable in the rulings and science of shariah. AlMawerdy states that the fundamentals of shariah rulings that the individual must know are 4:

1)      He must know the Quran so that he may know what it contains regarding rulings, and understand the various categories of rulings contained in the Quran.

2)      He must know the confirmed sunnah (traditions) of the Messenger of Allah (Peace and Blessings of Allah be Upon him)

3)      He must know the interpretations of the salaf (the predecessor scholars after the Prophet his companions), including what they reached a consensus upon and what they disagreed upon, so that he may follow the consensus, and use diligence to make a judgment on what was disagreed upon.

4)      He must have knowledge of analogy so that he may derive a ruling on something that has not been addressed based on similar matters.

ElMawerdy also addressed an issue related to the corruption of the judicial system, the giving of ‘gifts’ to judges. In his book, he states that it is not acceptable for one who has taken a judicial position to take a gift from a litigant, nor anyone working with him even if he is not a litigant. He also states that if the judge does accept a gift without giving the equivalent of the gift in return, then he should transfer it to Bait al Mal (the national treasury).

ElMawerdy advised in his book against the delaying of cases, and prohibited the overseeing of a judge in a case involving one of his parents or offspring.

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