Nativity of The Judge and Its Effect On His Judicial Decisions

A Refereed Study
Nativity of the Judge and its Effect

on His Judicial Decisions

Dr. Sa'eed ibn Mut'ib ibn Kardam Al-Qahtaanee
*

*
Member of the teaching staff, King Khalid University, College of Shareeah and Sources of
Religion, Department of the Sources of Islamic Jurisprudence.
Nativity of the Judge and Its Effect on His Judicial Decisions

110
Al-Adl (49)
Introduction
All praise is due to Allah, in a manner that suits His majesty and
power, and may His peace and blessings upon our Prophet Muhammad,
his pure family and noble companions.
Islamic judicial sciences are doubtless amongst the noblest forms of
sciences with the most honourable positions and numerous merits, as
they are closely connected with judgeshipthe position, office, or
function of a judgethe position of administering justice which holds a
lofty position in Islam and is the very position which was occupied by
the Prophet (may Allahs peace and blessings be upon him) himself. As
a matter of fact, judgeship serves to protect some peoples lives while
putting an end to other peoples lives, establish legal possession of
property to some people while denying it to others, and determining
what transactions are forbidden, lawful and recommended. As Imaam
Ahmad puts it, People need a judge [to judge among them], otherwise
their rights will certainly be lost.
2
Ibn Taymiyyah also writes in this
connection, Judging between people should be regarded as a religious
duty and a righteous deed. In fact, it is amongst the best of righteous
deeds.
3
It is the very act Almighty Allah describes as sound judgment
in decision and speech in the verse, We made his (i.e. Davids)
kingdom strong and gave him wisdom and sound judgment in decision
and speech
4
, as Al-Hasan Al-Basree has interpreted the verse.
5

Given the importance of the judicial sciences and the administration
of justice, Muslim scholars have written a great deal on this subject and
precisely delineated its sources and rulings. In the course of studying
scholars writings on this issue, I came across a very interesting
condition which the Maalikite jurists, particularly Ibn al-Haajib, stipulate
judges must meet; namely, that a judge must be a native of the country
where he holds his office. I also realised that mistakes which some
judges make are mainly attributed to their ignorance of peoples
prevailing customs and general circumstances. This generally takes

2
See Al-Mughnee, 14/5-6.
3
See Al-Ikhtiyyaaraat al-Fiqhiyyah, p. 233.
4
SuratSaad, 38:20.
5
See Tabsirat al-Hukkaam, 1/3.

111
Al-Adl (49)
place when some judges take their office in other than their native
countries, hence their unfamiliarity with the peoples general
circumstances and customs, which obviously vary from one place to
another. It is for this reason that I made up my mind to write on this
aspect of judicial sciences because it is closely related to the practical
aspect of the judiciary and because I believe it is an important factor
which is bound to assist the judge in reaching the right decision which
will undoubtedly be acceptable to the litigants. The main reason why I
have chosen to write on this issue is that I have not come across any
comprehensive study on this condition, with the exception of a few
words here and there not exceeding one line in some of the Maalikite
jurists writings.
I have highlighted this condition in the present paper in addition to
touching on important relevant judicial issues, such as the definition of
the word judge, the difference between the position of judge and that of
the muftee, the qualities of the judge and the conditions he must meet,
pointing out the difference between those conditions which make his
entitlement to the post legal and those that are not necessary but
recommended, the importance of the fact that the judge must be native
to the country where he holds his office based on a number of legal rules
including the one which necessitates taking the prevailing customs and
practices into account, in addition to other important relevant issues. I
have concluded the paper with practical examples which clearly reveal
the effect of being a native of the country on the judges decisions and
judgments and their dependence on his knowledge of the prevailing
customs and traditions.
It is due to the importance of this condition in reality that the Saudi
Law of the Judiciary stipulates that a judge must be a Saudi
national,
6
even though I believe, as I have made it plain in the research
recommendations, that judges must be selected from different parts of
the country given the differences in peoples customs and traditions, as
is the case in the rest of the various countries of the Muslim world.

6
See Law of the Judiciary, Article 37(a).

112
Al-Adl (49)
Section One: Qadhaa:Definitions and Conditions
Part One: Definitions
a. Linguistic Definition
The Arabic word qadhaa (translated here as judgeship and
administration of the law, among other expressions) generally denotes
perfection, exactitude, skill and execution and performance. As
IbnFaaris
7
states, The triliteral root of the word qadhaa denotes
exactitude, perfection and performance, as the Quran states, Then He
perfectly completed them (qadhaahynna) as seven heavens in two days.
8

He also states, Qadhaa also denotes judgment, as the Quran says,
Therefore, decree whatever you desire to decree.
9
The imperative form
iqdhi(translated here as decree) means judge and decide. It is for this
reason that the judge (qhaadee) is called as such because he pronounces
judgments and executes rulings. Death is also sometimes called qadhaa
because it is something that has been decreed and thus executed.
10

Ar-Raazee mentioned that the word qadhaa in Arabic refers to a
number of things including judgment, performance, settlement,
secession, execution, performance and ordainment. All these share the
same meaning, namely perfect completion and execution of something,
be it a word or a deed.
11

b. Technical Definition
Muslim jurists have furnished a number of definitions for the word
qadhaa in terms of it being a judgment, on the one hand, and with
reference to the person who undertakes it, on the other. Concerning its
definition in terms of it being a judgment, jurists generally define it as
the process of settling disputes and putting an end to disagreements.
12

Some scholars have defined it as a binding judgment issued by a

7
MujamMaqaayees al-Lughah, 5/99.
8
SuratFussilat, 41:12.
9
SuratTaaHaa, 20:72.
10
MujamMaqaayees al-Lughah, 5/99.
11
See Mukhtaar as-Sihaah, pp. 540-1 and al-Marsafaawee, Al-Qadhaa Fee al-Islaam, pp. 6-7.
12
See Radd al-Muhtaar, 8/20.

113
Al-Adl (49)
governor with a general mandate to rule over all affairs in his district or
province (wilaayah aammah).
13

IbnFarhoon defines it as a statement about a legal ruling by way of
making it binding.
14
Expanding on the binding nature of qadhaa, al-
Qaraafeesays in his definition of the term, It is to issue a legally binding
statement in matters which require ijtihaad
15
mutaqaarib
16
regarding
worldly issues over which disputes arise.
Some of the Shaafiite jurists do not mention anything regarding the
binding nature of statements issued by the judge in their definition of
the term qadhaa. Al-KhateebAl-Baghdaadee, the noted Shaafiite jurist,
defines the term as [the settlement of] a dispute between two or more
people by implementing Allahs law in this respect.
17

In his definition of the term, Al-Bahootee, the renowned Hanbalite
jurist, mentions another characteristic of qadhaa, namely, that it states
and brings to light the legal ruling regarding the disputed matter, in
addition to the binding nature of the judges statement mentioned in the
previous definitions. He writes, Qadhaa serves to bring to light the
legal ruling, make it binding and settle disputes.
18

What Al-Bahootee intends in his definition of the term qadhaa here is
to show the natural relationship between qadhaa and fatwaa, clearly
stating that even though both fatwaaandqadhaa bring to light the legal
ruling, qadhaa has the added advantage of making it binding.
19

In view of the person who undertakes qadhaa, IbnKhaldoon defines
it as the position of the person who undertakes to settle peoples
disputes once and for all.
20
Then he stipulates a condition for doing so

13
Al-Mawsilee, Al-Ikhtiyyaar Li Taleel al-Mukhtaar, 2/82.
14
15
Ijtihaad is the process of making legal decisions by independent interpretation of the legal sources.
(Translators Note)
16
The adjective mutaqaarib, which modifies the word ijtihaad, refers to those matters about which
scholars judgments are more or less approximate. See Al-Ihkaam Fee Tamyeez al-Fataawaa An al-
Ahkaam, p. 35; and Al-Furooq, 4/51.
17
Mughnee al-Muhtaaj, 6/257.
18
SharhMuntahaa al-Iraadaat, 3/485.See also Kash-shaaf al-Qinaa, 6/285.
19
See SharhMuntahaa al-Iraadaat, 3/483.
20
IbnKhaldoon, Al-Muqaddimah, p. 243.

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Al-Adl (49)
by stating that this should be done in accordance with the legal rulings
stated in the Quran and the Prophets Sunnah.
21

Ibn Arafah defines it as a position which entitles the person who
occupies it to make any judgment he issues rather binding, but not in all
matters relating to the Muslims general good.
22

In this definition, Ibn Arafahexplains that qadhaa in the terminology
of jurists grants the judge the authority to make his judgment binding,
hence the difference between qadhaa and fatwaa, the former having the
characteristic of being enforced and executed as opposed to the latter. By
the statement but not in all matters relating to the Muslims general
good he excludes those matters regarding which only the Muslim ruler
has the authority to judge, for the judge cannot possibly decide on such
matters as distributing the war booty, distributing wealth in the Muslim
public treasury and fighting the rebels who challenge the established
authority of the Muslim ruler, among other things.
23

It is clear that the abovementioned definitions, albeit the different
wording employed, state more or less the same thing, in that they all
emphasize the binding nature of the judges rulings, hence the difference
only in expression.
24
It is, however, the definition furnished by Ibn
Arafah which will serve my objective in the present paper, as it attaches
some importance to the person who occupies the position of judge as
well as the decisions he issues. This generally relates to the conditions
the judge must meet and the attributes he must have and the effect of
such attributes and conditions in the execution of his judgments. Of all
these attributes and conditions, I am primarily concerned in the present
paper with the condition to the effect that the judge must be a native of
the country where he holds his office.
25

21
Ibid. p. 244.
22
SharhHudoodIbn Arafah, 2/567. See also Al-Kharshee, SharhMukhtasarKhaleel, 7/137-8.
23
SharhHudoodIbn Arafah, 2/567-8. See also Al-Kharshee, SharhMukhtasarKhaleel, 7/138.
24
Abdul-Kareem Zaydaan, Nidhaam al-Qadhaa Fee ash-Shareeah al-Islaamiyyah, pp. 44-5.
25
For a more discussion of the definition of the term qadhaa, see Abdul-Kareem Zaydaan, Nidhaam
al-Qadhaa Fee ash-Shareeah al-Islaamiyyah, pp. 11-3; al-Marsafaawee, Nidhaam al-Qadhaa Fee al-
Islaam, pp. 7-8; Ahmad al-Mubaarak, Nidhaam al-Qadhaa Fee al-Islaam, p. 167; al-Marzooqee,
SultatWaliyyil-Amr Fee TaqyeedSultat al-Qaadhee, pp. 44-5; Naasir al-Ghaamdee, Al-Ukhtisaas al-
Qadhaaee Fee al-Fiqh al-Islaamee, pp. 35-40 and MahmoodBarakaat, As-Sultah at-Taqdeeriyah Lil
Qaadhee fee al-Fiqh al-Islaamee, pp. 22-6.

115
Al-Adl (49)
Part Two: The Relationship between
QadhaaandFatwaa
1. Definition of the Term Fatwaa
The words iftaa and fatwa are synonymous. The verb aftaameans to
give an explanation on a certain matter. As IbnFaaris states, The
Arabic triliteral root f-t-y denotes two things: (a) freshness and strength
and (b) clarification of a judgment The derived verb aftaa, when used
with reference to a jurist or judge regarding a matter,means to show the
ruling or judgment regarding this matter. Istaftaa, another derived verb,
means to enquire about the ruling on a certain matter, as evidenced by
the verse, They ask you for a legal ruling (yastaftoonaka). Say: Allah
gives you a decision concerning the person who has neither descendants
nor ascendants as heirs.
26

In Lisaan al-Arab we read, The verb aftaa means clarify and make
clearWith reference to a dream, it means interpret it, and with
reference to a certain matter, it means to provide an answer regarding
it.
27

In the terminology of Muslim jurists, the term fatwaahas been
defined with reference to both the person who undertakes it, namely,
the muftee, and also with reference to the process which a scholar who
conducts ijtihaad(that is, a mujtahid), namely the legal verdict, or fatwaa.
Regarding the latter, some jurists define it as showing the legal
ruling based on textual evidence from the Quran and the Prophets
Sunnah, as well as other forms of legal evidence.
28
Some others define it
as showing the legal ruling on a certain matter without making such a
ruling binding. It is up to the questioner to take it or leave it.
29

Al-Bahootee also writes in this respect, Futyaa(legal ruling) is the
explanation of the legal ruling [concerning a matter] to the person who
has asked about it.
30

26
Surat an-Nisaa, 4:176.
27
Lisaan al-Arab, 15/147
28
Ahmad Ta Ha Rayaan, Dhawaabit al-IjtihaadWalFatwaa, p. 71.
29
Abdul-Majeed ash-Sharafee, Diraasaat Fee al-IjtihaadWaFahm an-Nass, p. 112.
30
SharhMuntahaa al-Iraadaat, 3/483.

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Al-Adl (49)
Regarding the former, that is, with reference to the person who
issues the fatwaa(that is, the muftee), ash-Shaatibee defines it as the
person who occupies the same position in the midst of the Muslim
community just as the Prophet (peace and blessings be upon him) did in
his time."
31

This definition actually demonstrates the importance of the
fatwaaand the person who issues it, that is, the muftee. The question one
may ask here, what was the role of the Prophet (may Allahs peace and
blessings be upon him)? The answer is that he was engaged in issuing
legal rulings.
32

IbnHamdaan defines it as the person who informs about Allahs
ruling [as to a given matter] based on evidence. It has also been defined
as the expert who knows the legal rulings on the various matters based
on textual evidence while he knows most of the issues in the field of
Islamic jurisprudence.
33
Drawing a distinction between the person who
issues legal verdicts (muftee) and the judge, Ibn al-Qayyim states, The
ruler (that is, the judge), the muftee and the witness (shaahid) all provide
information as to Allahs ruling. The ruler is one whose statement is
binding, while the mufteeis one whose statement is not binding.
34

2. The Difference between Qadhaa andIftaa
The foregoing definitions of iftaa and qadhaa clearly indicate that
they are closely related, and thisnecessitates looking for any differences
that may exist between them; indeed, it is for this reason that Muslim
jurists have taken great pains to find such differences.
As al-Qaraafee
35
argues, the similarity between qadhaa and iftaa lies
in the fact that both of them provide information about Allahs ruling on
a certain matter, which entails that the listener must believe them and

31
See Al-Muwaafaqaat, 4/244.
32
In addition to inheritance of the knowledge of Islamic law (Shareeah) in general, conveying it and
teaching it to those who are ignorant of it, among other reasons. (Translators note)
33
Imaam Ahmad, Sifat al-FatwaaWal-Mustaftee, p. 4.
34
Ilaam al-Muwaqqieen, 4/133.
35
Al-Furooq, 4/53. See also Muhammad Ali al-Maalikee, Tahdheeb al-FurooqWalQawaaid as-Saniyah
Fee al-Asraar al-Fiqhiyah, 4/53.

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Al-Adl (49)
both of which must generally be acted upon by any person who is
considered legally responsible.
36

Al-Bahootee maintains that they both define the legal ruling on a
certain matter, hence their similarity.
37

However, despite the similarity that holds between the two terms,
there are some differences between them. Indeed, al-Qaraafee wrote a
book of monumental significance which discusses these differences and
which he entitled Al-Ihkaam Fee Tamyeez al-Fataawaa An al-
AhkaamWaTasarrufaat al-QaadheeWal-Imaam. The following are the main
differences between qadhaa and futyaa.
1) Iftaa is the process of giving a statement as to Allahs ruling on a
certain matter which the muftee is not required to execute; as for qadhaa,
although it also involves giving such a statement, the judge is required
to execute its underlying ruling.
38

2) Iftaa is far more comprehensive than qadhaa, for while fatwaa
involves acts of worship and general etiquette, qadhaa does not involve
acts of worship or anything related to them. Therefore, a judge cannot
decide whether a certain prayer is valid or otherwise, for qadhaa is
mainly concerned with disputes that arise regarding worldly matters.
39

3) While the judges ruling is binding and that of the mufteeis not so,
the judges ruling does not involve all the five Islamic rulings, that is the
state of whether an act is obligatory, recommended, disliked, lawful or
forbidden; for the judges main duty is to end disputes and remove
grievances. Therefore, we cannot conceive of his decisions except for
matters which lead to them, namely being obligatory, forbidden or
lawful, for an action that is described as being recommended or disliked
by no means serves to settle a dispute. Almighty Allah has granted
judges the authority to settle disputes which cannot be possibly settled

36
A person who is legally responsible (mukallaf) is one whomeets the conditions to be held legally
accountable for his actions. He is one whois pubescent, sane, and has received the message of
Islam. Pubescence happens when one reaches the age of fifteen years, or otherwise. The sane
person is one who has not lost ones mind. (Translators Note)
37
SharhMuntahaa al-Iraadaat, 3/483-5.
38
See Al-Furooq, 4/51; Al-Ihkaam Fee Tamyeez al-Fataawaa An alAhkaam, p. 97; and Mughnee al-
Muhtaaj, 6/257.
39
Al-Furooq, 4/48-9.

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Al-Adl (49)
without executing his decision. A fatwaa, on the other hand, involves all
the five Islamic rulings mentioned above
40

4) Even though qadhaa generally takes the Quran and the Sunnah
as its main references, it employs arguments based on confessions,
testimonial proofs, among other things, while futyaa employs evidence,
such as textual evidence from the Quran and the Prophets Sunnah.
41

5) While the judge has jurisdiction to cancel a ruling, a muftee
cannot possibly do so, based on a well-known Islamic principle in this
respect.
42

6) Qadhaa requires a particular manner to be conducted following a
valid claim, in which case precaution is highly required, as opposed to
iftaa, which only serves to explain the legal ruling on a certain matter,
even by giving a sign. A dumb muftee can, therefore, issue a legal verdict
with a gesture, in which case his verdict is absolutely acceptable, but he
cannot possibly occupy the position of judge and issue judgments.
43

7) Some jurists maintain that a person who is known to be
faasiq
44
can serve as a muftee but not a judge.
45

8) Futyaa can be abrogated, while the judgment issued by a judge is
not subject to abrogation. It can, however, be annulled once evidence
upon which the ruling is based turns out to be false.
46

40
Al-Ihkaam Fee Tamyeez al-Fataawaa An al-Ahkaam, pp. 69-70.
41
Ibid. 46-56.
42
Ibid. pp. 133-4.
43
Ad-Durr al-Mukhtaar, 8/31; and Radd al-Muhtaar, 8/31.
44
Faasiqis a reprobate person who neglects decorum in his dress and behavior and who lacks moral
integrity (adalah). This is when a person falls short in his obligations, specially the obligatory
prayers, or regularly misses supererogatory (nawaafil) prayers, or commits a major sin, or persists
on committing a minor sin, or does not pay attention to aspects that effect his reputation and
standing in society (murooah), such as not covering ones head in a country where to do so is
disliked, or eating on the streets in a country where such a practice is disliked, and so forth.
(Translators Note)
45
Ad-Durr al-Mukhtaar, 8/25 and 29; and Radd al-Muhtaar, 8/25 and 29-30. This difference is based
on stipulating the condition of adaalah (justice) on the part of the judge. This is the view of
Maalikites, the Shaafiites, the Hanbalites and one of the views of the Hanafites. Therefore, a person
who occupies the post of judge ought to be adl (just). One of the views expressed by the Hanafite
jurists states that it is a admissible for a person known to be faasiq to hold the position of judge,
considering the condition of adaalah to be merely recommended and not one of those conditions
that render his post as judge permissible. Despite all this, they maintain that a person known to
be faasiqmust not be appointed judge and those who appoint him to such a position are
considered sinners. This point will be discussed in detail in the next part.

119
Al-Adl (49)
Despite these differences, qadhaa and iftaa are closely related. I
believe, though, that iftaa is more comprehensive than qadhaa in that it
covers all aspects of Islamic jurisprudence, as opposed to qadhaa.
Due to the considerable similarity between the two posts, I have
stipulated a number of conditions which are shared by both, including
the condition of being aware of knowing people and the prevailing
customs and traditions in society. One of the factors which will great
assist in doing this is that the judge must be a native of the country
47

where he holds his office. This point will discussed at length later on.
Part Three: The Condition the Judge Must Meet
Muslim jurists have generally divided the conditions which a judge
must meet into two types: Those conditions which he must meet for his
entitlement to the post to be legal and those which are merely
recommended. Some other jurists have not made any distinction
whatsoever between such conditions. The right opinion, however, is that
a distinction must be made between these two types of conditions, and
that while the judge must meet the conditions required for his rightful
entitlement tohis office, he must also meet the recommended conditions
in order to be able to issue sounder judgments to the satisfaction of the
litigants.
Generally speaking, if the Muslim ruler intends to appoint a judge,
he must go to great pains to do so for the common good of the Muslims
at large. He must not favour anybody in this respect and must do so for
the sake of Allah alone. Umar ibn al-Khattaab (may Allah be pleased
with him) once remarked, Any ruler who appoints a governor or a
judge, unjustly favouring him, will be equally punished for the sins he
commits. If, however, he appoints him governor or judge for the

46
For details concerning this point, see Al-Qaraafee, Al-Ihkaam Fee Tamyeez al-Fataawaa An al-Ahkaam,
p. 103.
47
He must be a native of the country, or city or town for that matter, where he holds his office.
(Translators Note)

120
Al-Adl (49)
common good of the Muslims, he will be equally rewarded for whatever
good deeds he does.
48

Scholars have stipulated a number of conditions a judge must meet,
and these can be summarised as follows:
The Required Conditions which Make the Judges Entitlement to
the Post Legal
1) Islam: All scholars are agreed that a judge must be Muslim;
therefore, it is not permissible to allow a non-Muslim judge to judge
between Muslims or deal with a legal case to which a Muslim is a
party.
49

2) Sanity: Scholars are generally agreed that the judge must be
sane, for legal responsibility (takleef) largely depends on sanity. Being
one of the noblest and most important posts in Islam, only a sane and
sensible person may be appointed to such a post. An insane person
cannot be considered eligible to occupy an inferior position, let alone
that of judge. A judge is required to use his intellectual faculties at all
times, including while examining the legal case and when pronouncing
a judgment regarding it. If, at any stage, the judge lacks the intellectual
power to conduct his judicial duties, the judgment he issues is null and
void.
50

3) Puberty: A judge must also fulfil this condition.
51

48
Mu'een al-HukkaamFeeMaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, pp. 13-4, See also Tabsirat
al-Hukkaam, 1/ 21.
49
Ibn al-Qaass, Adab al-Qaadhee, 1/101; Al-Maawardee, Adab al-Qaadhee, 1/631; Al-Mughnee, 14/12;
SharhFath al-Qadeer, 7/233-5; Badaai as-Sanaaii, 5/438; Mughnee al-Muhtaaj, 6/262; Tabsirat al-
Hukkaam, 1/21; Mueen al-Hukkaam Fee MaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, p. 14;
Mueen al-Hukkaam Alaa al-QadhaayaaWal-Ahkaam, 1/608; SharhMuntahaa al-Iraadaat, 3/492; Ad-
Durr al-Mukhtaar, 8/23; Radd al-Muhtaar, 8/23-5; At-Tandheem al-Qadhaaee, p. 54; Al-
Marsafaawee, Nidhaam al-Qadhaa Fee al-Islaam, p. 13; and As-Sultah at-Taqdeeriyah Lil Qaadhee, p.
31ff.
50
Durr al-Mukhtaar, 8/23; Radd al-Muhtaar, 8/25; Al-Marsafaawee, Nidhaam al-Qadhaa Fee al-Islaam,
p. 12; At-Tandheem al-Qadhaaee, p. 54;and As-Sultah at-Taqdeeriyah Lil Qaadhee, p. 31ff.
51
SharhMuntahaa al-Iraadaat, 3/492; Ad-Durr al-Mukhtaar, 8/23; Radd al-Muhtaar, 8/23-5; At-

121
Al-Adl (49)
4) Freedom: This entails that a slave may not be appointed judge as
he has no control over others, being his masters slave.
52

5) Justice (Adaalah): Scholars are generally agreed that the judge
must be adl (just) and they have expressed different opinions as to the
characteristics of a judge with such a quality. The correct opinion is that
a judge with such a characteristic is one who does not neglect decorum
in his dress and behavior and does not lack moral integrity (that is, not
faasiq), honest, does not indulge in forbidden acts, avoids sins, does not
behave in a manner that exposes him to suspicion and remains reliable
and trustworthy under all circumstances.
53
If he enjoys such
characteristics, then he can rightly be described as adl. A person, on the
other hand, who openly commits forbidden acts and is known for
lacking moral integrity, that is a faasiq, is by no means eligible for
holding the post of judge.
54

This condition has been stipulated by the Hanafitesaccording to one
of their opinions.
55
It has also been stipulated by theMaalikites, the
Shaafiites and the Hanbalites.
56
The Hanafites hold another opinion to the
effect that a person who lacks moral integrity (faasiq) can hold the

Tandheem al-Qadhaaee, p. 54; Al-Marsafaawee, Nidhaam al-Qadhaa Fee al-Islaam, p. 11;and As-
Sultah at-Taqdeeriyah Lil Qaadhee, p. 31ff.
52
Durr al-Mukhtaar, 8/23; Radd al-Muhtaar, 8/23; Al-Marsafaawee, Nidhaam al-Qadhaa Fee al-Islaam,
p. 12; At-Tandheem al-Qadhaaee, p. 54;and As-Sultah at-Taqdeeriyah Lil Qaadhee, p. 31ff.
53
See Al-Maawardee, Adab al-Qaadhee, 1/98.
54
Durr al-Mukhtaar, 8/25; Radd al-Muhtaar, 8/25-6; Al-Marsafaawee, Nidhaam al-Qadhaa Fee al-
Islaam, p. 16; At-Tandheem al-Qadhaaee, pp. 55-6;and As-Sultah at-Taqdeeriyah Lil Qaadhee, p. 54ff.
55
See Tanweer al-Absaar, 8/25; and Ad-Durr al-Mukhtaar, 8/25-6.
56
Durr al-Mukhtaar, 8/25; Radd al-Muhtaar, 8/25-6; Al-Marsafaawee, Nidhaam al-Qadhaa Fee al-
Islaam, p. 16; At-Tandheem al-Qadhaaee, pp. 55-6; Sharh al-Kharshee, 7/138;and As-Sultah at-
Taqdeeriyah Lil Qaadhee, p. 54ff.

122
Al-Adl (49)
position of judge, stating that adaalah (justice) is merely a recommended
condition which does not affect his entitlement to the post. They argue,
however, that a faasiq must not be appointed judge, and that whoever
appoints him to such a post is sinful.
57

6) Soundness of Senses: He must also enjoy sound senses, for
soundness of senses is undoubtedly necessary to perceive and
comprehend things. Lack of sound senses negatively affects the mind.
58

7) Ability to Conduct Ijtihaad:
59
A group of scholars from among
the Maalikites,
60
the Shaafiites
61
and the Hanbalites
62
argue that the person
to be appointed judge must reach the level of ijtihaadmutlaq.
63

57
See SharhFath al-Qadeer, 7/234-5; Badaai as-Sanaaii, 5/439; Mueen al-Hukkaam Fee
MaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, p. 14; Ad-Durr al-Mukhtaar, 8/25; Radd al-
Muhtaar, 8/25-6; Al-Marsafaawee, Nidhaam al-Qadhaa Fee al-Islaam, pp. 16-7;and Masafat al-
Hukkaam Alaa al-Ahkaam, 1/222-7
58
Badaai as-Sanaaii, 5/438-9; Mughnee al-Muhtaaj, 6/262; Tabsirat al-Hukkaam, 1/31;
SharhMuntahaa al-Iraadaat, 3/492; Radd al-Muhtaar, 8/31; and Al-Marsafaawee, Nidhaam al-Qadhaa
Fee al-Islaam, p. 14;
59
Ijtihaadis the endeavour of a Muslim scholar to derive a rule of divine law from the Quran and
hadeeth without relying on the views of other scholars. (Translators Note)
60
Ibn al-Qaass, Adab al-Qaadhee, 1/98; Al-Maawardee, Adab al-Qaadhee, 1/636; Al-Mughnee, 14/14-6;
Mughnee al-Muhtaaj, 6/263; Tabsirat al-Hukkaam, 1/21; Mueen al-Hukkaam Fee
MaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, p. 14; Mueen al-Hukkaam Alaa al-
QadhaayaaWal-Ahkaam, 2/608; SharhMuntahaa al-Iraadaat, 3/492; Al-Marsafaawee, Nidhaam al-
Qadhaa Fee al-Islaam, p. 19; At-Tandheem al-Qadhaaee, pp. 59-60.
61
Qadhaa Fee al-Islaam, p. 19; At-Tandheem al-Qadhaaee, pp. 59-60.
62
Qadhaa Fee al-Islaam, p. 19; At-Tandheem al-Qadhaaee, pp. 59-60; andAs-Sultah at-Taqdeeriyah Lil
Qaadhee, p. 58ff.
63
That is, he is mujtahidmutlaq (unrestricted in his ijtihaad),one who is attached to one of the well-
known schools and follows the juristic approach of its founder but in deducing legal rules, on the
basis of the school's juristic principles, he may formulate his own independent legal opinions
which may be different from the legal opinions of the founder. For instance, while being a
Shaafiite or a Hanafite in jurisprudence, he may differ with ash-Shaafi'ee or Abu Haneefah's
express legal verdicts in legal matters. A number of eminent jurists are considered to belong to
this class, such as: Imam al-Haramayn al-Juwaym, Abu Hamid Muhammad al-Ghazaalee, Ibn as-
Sabbaagh, and others. (Translators Note)

123
Al-Adl (49)
Some scholars from among the Maalikites,
64
the Shaafiites
65
and the
Hanbalites,
66
however, maintain that the judge does not necessarily have
to be a mujtahid (that is, one who exercised ijtihaad) and that he only has
to be knowledgeable and able to apply the right legal ruling on the
incident presented in the legal case.
The majority of Hanafite jurists do not consider knowledge a
condition which a judge must meet, nor do they stipulate that he ought
to be mujtahidmutlaq, mujtahidmadh-hab
67
or evenmujtahidmasalah.
68
They
go as far as allowing an illiterate person to be appointed to the post of
judge if there is no one who is more qualified and competent than him.
The Hanafites generally consider the position of ijtihaadmutlaqtobe a
highly recommended condition but not a prerequisite that renders the
judges entitlement to the post legal.
69

Modern scholars from all schools of Islamic jurisprudence, however,
contend themselves with the condition that a judge must have Islamic
knowledge based on one of the four schools of Islamic jurisprudence.
70

In this day and age, when it is next to impossible to find high calibre
judges who have attained the level of amujtahidmutlaq, or at least when
they are rarities even in the field of issuing legal verdicts, people cannot
but do with anyone who can carry out the task efficiently. Seeing that
reaching the level of ijtihaadmutlaq is not a condition that a judge must
meet, Ibn Qudaamah writes, Abu Bakr as-Siddeeq and Umar ibn al-
Khattaab, who served as the Prophets ministers and ruled the Muslim
community after his demise and were undoubtedly the best of people

64
See Tabsirat al-Hukkaam, 1/21-2; Sharh al-Kharshee, 7/139; Mueen al-Hukkaam Alaa al-
QadhaayaaWal-Ahkaam, 2/608-9; Haashiyat al-Adawee, 7/139; and Ibn Aashoor, Maqaasid ash-
Shareeah al-Islaamiyyah, p. 370.
65
See Minhaaj at-Taalibeen along with Mughnee al-Muhtaaj, 6/263-4; and Mughnee al-Muhtaaj, 6/263-4
66
See Al-Iqnaa, 6/295-6; and Kash-shaaf al-Qinaa, 6/295-6.
67
Mujtahidal-madh-hab (also occasionally known as or mujtahidal-fatwaa) is someone who follows the
founder of the school in all matters in which the founder has expressly given his views. However
in issues in which he does find an opinion of the founder, he may exercise his own ijtihaad and
give fatwa. (Translators Note)
68
Mujtahid al-masalah is a mujtahidwho is competent to conduct ijtihaad in a specific issue or group of
issues. (Translators Note)
69
See Fath al-Qadeer, 7/238; Badaai as-Sanaai, 5/439-40; Masafat al-Hukkaam Alaa al-Ahkaam, 1/213-
20 and 2/635-6; Ibn Aashoor, Maqaasid ash-Shareeah, p. 370; and At-Tandheem al-Qadhaaee Fee al-
Fiqh al-Islaamee, p. 60.
70
See At-Tandheem al-Qadhaaee Fee al-Fiqh al-Islaamee, p. 60.

124
Al-Adl (49)
after him, used to ask people about legal rulings when no evidence from
the Prophets Sunnah was available to them. They did this during their
caliphates. A woman came to Abu Bakr as-Siddeeq (may Allah be
pleased with him) and asked him for her inheritance. Abu Bakr said to
her, 'You have nothing according to the Book of Allah, and I do not
know that you have anything according to the Sunnah of Allahs
Messenger (may Allah peace and blessings be upon him). Come back
after I have asked the people (i.e. the Companions) about this.' He then
asked them and al-Mugheerah ibn Shubah said, 'I was present with
Allahs Messenger (May Allahs peace and blessings be upon him) when
he gave the grandmother a sixth.' [Abu Bakr asked if there was anybody
else who was with him, and Muhammad ibn Maslamah al-Ansaaree
stood up and said the like of what al-Mugheerah had said. Abu Bakr as-
Siddeeq gave it to her.]
71
'Umar ibn al-Khattaab (may Allah be pleased
with him) consulted the Companions about the case of a woman's
abortion caused by somebody else. Al-Mugheerah informed him that the
Prophet (may Allahs peace and blessings be upon him) gave the verdict
that a male or female slave should be given as a blood money
72
To
conduct ijtihaadin a specific issue does not necessitate that the
mujtahidmust conduct ijtihaadin all other issuesTo illustrate, a [scholar]
who is well-versed in the Islamic law of inheritance does not necessarily
have to be also well-versed in matters relating to rulings on sale or
agreements in order to conduct ijtihaad.
73

He concludes by stating, Each and every leading jurist has desisted
from dealing with a number of cases. It has been rightly said, Whoever
has an answer to every case is definitely mad, and if a scholar answers a

71
This hadeeth was reported by Ibn Abu Shaybah, Abu Daawood , At-Tirmidhee and others. At-
Tirmidhee categorised it as hasansaheeh(good and authentic), but Sheikh Al-Albaanee categorised
it as dhaeef (weak). See Ibn Abu Shaybah, Al-Musannaf, 7/363; Sunan Abu Daawoodalong with
Awn al-Mabood, 8/72; Sunan At-Tirmidheealong with Tuhfat al-Ahwadhee, 6/232-3 Jaami al-Usool,
9/608; and Irwaa al-Ghaleel, 6/124.
72
See Saheeh al-Bukhaareealong with Fath al-Baaree, Book of Blood Money), 12/247; Saheeh Muslim Bi
Sharh an-Nawawee, 11/150; Ibn Abu Shaybah, Al-Musannaf, 6/338; and Abdur-Razzaaq, Al-
Musannaf, 10/61.
73
Al-Mughnee, 14/15-6.

125
Al-Adl (49)
question about which he does not know much instead of saying that
Allah knows best, he will definitely err.
74

MaalikibnAnaswrites, I do not think that a person would be
capable of fulfilling all the conditions for holding the post of judge. He
should begiven such a post if he fulfills two conditions, namely
knowledge and piety.
75
Commenting on this IbnHabeeb said, If
knowledge is not possible, then the intellect and piety would do; for he
can ask due to his intellect and can desist from erring due to his piety. "
76

The Recommended Conditions the Judge Must Meet for Holding
his Post
Muslim jurists have mentioned a number of recommended
conditions for a judge to meet with a view to carrying out his judicial
duties efficiently and completely satisfying his litigants. These include
the fact that he must be qualified for the post, able to execute his
judgments to right a wrong, must not display weakness in any way so
that he may not be fooled, must not disdain to consult knowledgeable
people; he must be virtuous and content with his lot, not coveting what
others may have, careful not to take impulsive decisions, be wary of
tricks, must mean what he says and his statements must find acceptance
with people and fill them with awe when he warns them; he must fulfil
his promises and avoid to be seen doing something that is unacceptable;
he must carry out his duties as Allah wishes them to be carried out
without fearing peoples criticism for what he does as long as he knows
he is doing the right thing; he must not hold grudges against people,
must avoid all forms of injustice, arguments and bigotry and be aware of
the judgments issued by judges before him. He must be sincere, must
maintain a dignified attitude and must be a native of the country where
he holds his office and fully acquainted with the dialects of his country.
77

74
Ibid. 14/16.
75
SeeMueen al-Hukkaam Alaa al-QadhaayaaWal-Ahkaam, 2/609; and Tabsirat al-Hukkaam, 1/24.
76
Ibid.
77
For further details on this point, see
77
Ibn al-Qaass, Adab al-Qaadhee, 1/98; Al-Maawardee, Adab al-
Qaadhee, 1/631; Al-Mughnee, 14/17; Badaai as-Sanaai, 5/440;An-Nawawee, Minhaaj at-Taalibeen,
6/263;Mughnee al-Muhtaaj, 6/263; Tabsirat al-Hukkaam, 1/23; Mueen al-Hukkaam Fee
QadhaayaaWal-Ahkaam, 2/608; SharhMuntahaa al-Iraadaat, 3/496; At-Tandheem al-Qadhaaee, pp. 60-
1; Ahmad al-Mubaarak, Nidhaam al-Qadhaa Fee al-Islaam, pp. 1184-5; and As-Sultah at-Taqdeeriyah
Lil Qaadhee, p. 70ff.

126
Al-Adl (49)
These are some of the recommended conditions a judge must meet,
and there are far more conditions which are not mentioned here.
Anyway, a judge must do his best to meet such conditions in order to
carry out his judicial duties in the best possible manner. Indeed, such
conditions are bound to leave a good impression act on the litigants and
encourage them to happily accept any judgments issued by the judge.
Part Four: Scholars Disagreement as to the
Condition that the Judge must be a Native of the
Country where he Holds his Office
We have already mentioned that one of the recommended
conditions a judge must meet is that he must be a native of the country
where he holds his office. Scholars have, however, expressed two
different opinions regarding this condition:
First Opinion:
A judge must be a native of the country where he holds his office.
This is a recommended condition for holding such a post but not a
required one. Scholars who hold this view include Ibn al-Haajib
78
and
Ibn Farhoon,
79
among many others.
80

In support of their opinion, they argue that if the judge is a native of
the country where he holds his office, he is bound to know people better,
the general circumstances of witnesses, among other things.
81

Second Opinion:
A judge need not be a native of the country where he holds his
office.
82
Al-Hattaab,
83
Mayaarah
84
and Sheikh Ullaysh
85
cite in their books

78
Jaami al-Ummahaat, p. 462.
79
80
See Minah al-Jaleel, 17/309; Mawaahib al-Jaleel, 17/64; Sharh al-Kharshee, 7/141; Al-Fawaakih ad-
Dawaane AlaaRisaalat Abu Zayd al-Qayrawaanee, 7/253; and Muhammad Mayaarah, Al-
ItqaanWalIhkaam Fee SharhTuhfat al-Hukkaam, 1/29.
81
See Minah al-Jaleel, 17/309; Mawaahib al-Jaleel, 17/64; Sharh al-Kharshee, 7/141; Haashiyat al-Adawee,
7/141; and Muhammad Mayaarah, Al-ItqaanWalIhkaam Fee SharhTuhfat al-Hukkaam, 1/29-30.
82
See Minah al-Jaleel, 17/309; Mawaahib al-Jaleel, 17/65; Sharh al-Kharshee, 7/141; Haashiyat al-Adawee,
7/141; and Muhammad Mayaarah, Al-ItqaanWal-Ihkaam Fee SharhTuhfat al-Hukkaam, 1/29-30.
83
See Mawaahib al-Jaleel, 17/65.
84
Muhammad Mayaarah, Al-ItqaanWal-Ihkaam Fee SharhTuhfat al-Hukkaam, 1/29-30.
85
Minah al-Jaleel, 17/309.

127
Al-Adl (49)
that IbnRushd and Ibn Abdus-Salaam stated that rulers in their time
gave preference to non-native over native judges.
In support of their opinion, proponents of this view base their
arguments on the following misconceptions:
If the judge is a native of the country where he holds his office,
he may favour some litigants over others, for the simple fact that he will
certainly have friends and foes.
86

More often than not, there must exist some kind of rivalry
between him and his fellow countrymen, which may subject him to the
suspicion that he does not judge justly, and this requires that all the
means leading to such unfounded suspicions be blocked so that his
judgments may not be turned down.
87

The preponderant view in my estimation, however, is that the
condition that a judge must be a native of the country where he hold his
office is absolutely legal and constitutes a recommended condition, for it
is bound to assist the judge inbeing aware of peoples general
circumstances, common expressions and idioms and what they mean by
them. This would undoubtedly help him pass the right judgment.
Support for this condition comes from the statements of some jurists
who stipulate that a judge must know the dialects in the city or district
where he exercises his jurisdiction so that he would be able to fully
comprehend litigants claims.
88

If, however, he is a not a native, then we must not tolerate him being
ignorant of the customs and traditions of the people. Native judges do
know better than non-native judges in this respect. In fact, non-native
judges would take a long time before they may become aware of
peoples traditions, general circumstances and local dialects which
generally have to do with the rulings he pronounces, especially if such
rulings are urgent and cannot be delayed.

86
Sharh al-Kharshee, 7/141; Haashiyat al-Adawee, 7/141; and Muhammad Mayaarah, Al-ItqaanWal-
Ihkaam Fee SharhTuhfat al-Hukkaam, 1/30.
87
See Muhammad Mayaarah, Al-ItqaanWal-Ihkaam Fee SharhTuhfat al-Hukkaam, 1/30.
88
Ibn al-Qaass, Adab al-Qaadhee, 1/98; Al-Mughnee, 14/17; Mughnee al-Muhtaaj, 6/262-3;
SharhMuntahaa al-Iraadaat, 3/496; and Kash-shaaf al-Qinaa, 6/310.

128
Al-Adl (49)
The following two points show the importance of the fact that a
judge must be a native of the country where he exercises his jurisdiction
and must be aware of peoples general circumstances:
He needs to understand the environment where he exercises his
jurisdiction so as to opt for the right judgments.
He needs to know people very well.
89

Concerning the first point, a judge cannot possibly issue a judgment
before first fully comprehending the case and the circumstances
surrounding it. It is for this reason that he must have knowledge about
two things, namely (1) knowledge of the environment where he lives
and peoples general circumstances to be able to understand the true
nature of their disputes based on evidence furnished, without of course
dispensing with the professional advice of experts in different fields of
interest so that his judgment may be right, and (2) knowledge of what he
ought to do under such circumstances, namely acting on the judgments
of Allah and His Messenger regarding the case he is dealing with in
such environment.
In order for the judge to be fully acquainted with such environment,
he ought to know people as well, hence the recommended condition that
he must be a native of the country where he holds his office.
Concerning the second point, the judge must know the people in the
city or district where he exercises his jurisdiction very well. He must also
be familiar with their general circumstances and prevailing customs. If
he sees that their circumstances or customs have undergone any change,
he also changes his judgment in accordance with well-known legal
criteria, namely that rulings based on the prevailing customs change
with the change of such customs. In reality, such a course of action
reflects the judges good understanding and wisdom as he only passes
the right judgment based on the right circumstances.
A number of scholars have stressed the importance of the judges
observance of peoples general circumstances and changing customs
when he deals with cases they present before him. As Al-Qaraafee
states, Rulings must change with the change of circumstances and

89
For a detailed discussion of this subject, see AadilQootah, Al-Urf (The Prevailing Customs), 1/58.
See also Umar al-Jeedee, Al-UrfWal-Amal, pp. 149-58.

129
Al-Adl (49)
customsMuslim scholars are unanimously agreed in this regardIf a
man from another district comes to ask you about a legal ruling, do not
issue a ruling based on the prevailing customs in your own district.
Rather ask him about his own customs and then issue the verdict
accordingly. Do so without relying on the customs of your district or the
verdicts stated in books. This is the right course of action to be taken in
this respect. Relying on the written statements reflects utter ignorance of
ones religion as well as what the early Muslim scholars intended to
state in their writings.
90

In this connection, As-Sanhaagee also states, A judge must be
cognizant of the general circumstances and customs of the people of the
country where he holds his office so that he may pass judgments
according to these circumstances and customs
91

When Sheikh Abdus-Salaam, the well-known Tunisian scholar, was
told that he was not appointed judge due to his strictness in passing
judgments, he replied, I am fully aware of their general circumstances
and customs and so I take them into account before pronouncing any
judgment.
92

It is clear, therefore, that the judge must be cognizant of the
prevailing customs in the country where he holds his office. Al-Qaraafee
has mentioned that Muslim scholars are unanimously agreed in this
regard.
93

Given the importance of being aware of the prevailing customs,
some scholars have stipulated that the judge and the muftee must know
people very well. As Imaam Ahmad states, A muftee must not engage in
issuing legal verdicts unless he meets five conditions: (1) he must have a
good intention, otherwise neither he nor his statements will be
blessed;(2) he must be knowledgeable, tolerant and maintain a dignified
attitude; (3) he must fully understand the general circumstances
surrounding the case he is dealing with; (4)he must be self-sufficient and

90
Al-Qaraafee, Al-Furooq, 1/176-7.
91
Mawaahib al-Khallaaq, 2/243.
92
Umar Al-Faasee, Sharhaz-Zuqaaqiyah, p. 248. For more quotations on the subject, see Maqaasid ash-
Shareeah al-Islaamiyyah, p. 139; andAliibn Muhammad al-Misree, Tuhfat al-Akyaas, 1/48.
93
Al-Furooq, 1/176.

130
Al-Adl (49)
not expect peoples help, otherwise he may give in to their selfish
wishes; and (5) he must know people very well.
94

Commenting on this, Ibn Al-Qayyim writes, The fifth condition,
namely, good knowledge of people and their general circumstances, is a
very important condition which must be met by the muftee and the
judgeIf he is not aware of the general circumstances and does not
know people very well, he may regard the unjust person to be the victim
of injustice, when the opposite is true. He will also regard the truthful as
a liar and vice versa. In this way, he will fall victim to deception and
trickery. He will also consider a non-believing person to be a true
believer and a believer to be a non-believer This only happens because
of his ignorance of peoples general circumstances and prevailing
circumstances. Therefore, he must be cognizant of peoples deception
and trickery as well as customs and traditions, for a legal verdict
changes with the change of time, place, and general circumstances and
customs. Indeed, all this constitutes part of Allah;
95
religion.
If such a condition has been stipulated in the case of a muftee whose
statement is by no means binding, it must a fortioribe stipulated in the
case of the judge who has to be far more careful with the judgments he
issues than would the muftee as to the fatwa he issues, for the simple
reason that the judges decisions are binding and cannot be repealed.
Clarifying the importance of knowing peoples general
circumstances, Al-Khateeb al-Baghdaadee writes, The muftee needs to
have some knowledge about all matters relating to this world as well as
the hereafter. He must know when something is said or done in all
seriousness or in jest, what may be regarded as beneficial or harmful as
well as peoples general circumstances, customs and traditions. One of
the conditions a muftee must fulfil is that he has to consider everything
stated here, and he will not be able to do so unless he meets people from
different sects and opinions, ask them questions, mingle with them,
collect books and study them.
96

94
See IbnBattah, Ibtaal al-Hiyal, p. 24; Al-Uddah Fee Usool al-Fiqh, 5/1599; Tabaqaat al-Hanaabilah, 2/57;
Ilaam al-Muwaqqieen, 4/152; and Kash-shaaf al-Qinaa, 6/299.
95
Ilaam al-Muwaqqieen, 4/157.
96
Al-FaqeehWal-Mutafaqqih, 2/35.

131
Al-Adl (49)
Stressing the importance of this condition, Al-Qaraafee makes it
incumbent upon the muftee to take sufficient precautions before he issues
any verdict by ascertaining his knowledge of the circumstances of the
person seeking the legal verdict and the general circumstances and
prevailing customs in the country he has come from, not the country he
has gone to.
97

He also goes as far as making it incumbent upon the muftee to issue
verdicts based on the general circumstances and prevailing customs in
the country to which he himself has moved, and not based on those
prevailing in the country he has come from.
98

Al-Bahootee expresses a similar opinion as the one held by Al-
Qaraafee, stating that the muftee is not allowed to issue a legal verdict
based on the circumstances and customs he is used to; rather, he must
take into account the circumstances and customs prevalent in the
country where he issues the legal verdict, for customs are to be given
precedence over anything else.
99

Ibn Aabideen succinctly discusses the duty of the muftee thus, The
muftee must be cognizant of the time, place and peoples general
circumstances. He must also be able to tell whether the prevailing
customs he observes are general or specific and whether they contradict
textual evidence from the Quran and the Sunnah. He ought to study
under a highly competent teacher and not merely memorise juristic
cases and proofs.
100

That Muslim scholars have emphasised the importance of
considering prevailing customs on the part of the muftee and have
mentioned the seriousness of issuing a legal verdict without taking into
account peoples general circumstances and prevailing customs and
traditions in the country where the fatwa is issued, this is far more
serious in the case of the judge due to the effect his judgment is bound to

97
Al-Ihkaam Fee Tamyeez al-Fataawaa An Al-Ahkaam, p. 232. See also IbnFarhoon, Tabsirat al-Hukkaam,
p. 76.
98
Al-Ihkaam Fee Tamyeez al-Fataawaa An Al-Ahkaam, p. 219. See also IbnFarhoon, Tabsirat al-Hukkaam,
p. 73.
99
Kash-shaaf al-Qinaa along with Matn al-Iqnaa, 6/304.
100
MajmooatRasaailIbn Aabideen, 2/129.

132
Al-Adl (49)
leave and the great deal of harm it may cause if the prevailing customs
and traditions are not taken into account.
It is for this reason that I believe that the condition that the judge
must be a native of the country where he holds his office is the
preponderant view. This is all the more true in this day and age when
Islamic universities have spread far and wide all over the Muslim world.
Judges must be carefully selected, as they are more often than not fully
aware of peoples customs and traditions. This will certainly assist them
in taking such customs into account when passing a judgment. In this
way, their judgments will definitely be sound given the importance of
the prevailing customs in deciding on the right judgments and
rulings.
101

Part Five: Juristic Principles in Support of this
Condition
Muslim jurists have mentioned a number of juristic principles in
support of the principle of taking into account the prevailing customs
when passing a judgment or issuing a legal verdict,
102
hence the
importance of the judges knowledge of the prevailing customs of the
country where he holds his office, whether he is a native of that country
or otherwise. The following are some of these principles:
1. If a custom is changed or falls into disuse, whatever has caused it
must also fall into disuse depending on the different times and places.
103

2. Muslim scholars are unanimously agreed that any ruling based
on a prevailing custom changes with the change of such a custom.
104

101
For further discussion of this point, see Ibn al-Qayyim, At-Turuq al-Hukmiyyah, p. 101.
102
It should be noted that most of the principles under the maxim al-aadahmuhkamah (cultural usage
shall have the weight of law) are in total support of this condition. I will here restrict myself to
some examples of the general principles which generally relate to the judge and the muftee, due to
the fact that the condition that a judge must be a native of the country where he holds office is
also related to them. These principles are all covered in Qaaidat Al-AadahMuhkamah (The Maxim
Cultural Usage Shall Have the Weight of Law) by Dr.Yaqoob al-Baa Husayn, pp. 235-42.
103
Al-UrfWal-Amal Fee al-Madh-hab al-Maalikee, p. 135. See also Qawaaid al-Muqri, maxim no. 1031.
104
Al-UrfWal-Amal Fee al-Madh-hab al-Maalikee, p. 135. See also Qawaaid al-Muqri, maxim no. 1037.

133
Al-Adl (49)
3. Rulings which are based on the prevailing practices apply as
long as such practices do not change. If they change, the rulings must
also change.
105

4. The different general circumstances in the various places and
times necessitate a difference in rulings.
106

5. A change in the general circumstances necessitates a change in
rulings.
107

6. The prevailing custom is a fundamental principle which must be
resorted to when a dispute arises.
108

7. The prevailing practices constitute a binding authority which
must be observed.
109

8. The judge who is aware of an established custom must take it
into account when passing a judgment.
110

9. Anything that is supported by a prevailing custom must be taken
into account when issuing a ruling.
111

10. A prevailing custom is to be understood in the light of how
people in a given place truly understand it by the name attached to it.
112

11. Any claim which is disproved by a prevailing custom and
rejected by the prevailing practice is to be rejected altogether.
113

12. Peoples statements are to be understood according to the
prevailing customs as to the manner they communicate with another.
114

13. Pious experts are to be resorted to in all matters.
115

105
Al-Furooq, 1/671.
106
Ibid.4/310.
107
Ibid. 1/45.
108
Al-Ishraaf AlaaMasaail al-Khilaaf, 2/9, 17, 84, 109 and 129.
109
See Durar al-Hukkaam, 1/46; and Mustafaaaz-Zarqaa, Sharh al-Qawaaid al-Fiqhiyyah, p. 223.
110
Al-Furooq, 4/103.
111
Ibid. 3/149.
112
Majmoo RasaailIbn Aabideen, p. 29.
113
See Al-Furooq, 4/80-1; Tanqeeh al-Fusool, p. 454; Ilaam al-Muwaqqieen, 3/273; At-Turuq al-
Hukmiyyah, p. 126; Ibn Al-Wakeel, Al-Ashbaah Wan-Nadhaair, 2/405; and Tabsirat al-Hukkaam,
1/110-1.
114
See Al-Qaraafee, Al-Furooq, 1/173; Majmoo al-Fataawaa, 31/18; Al-Ikhtiyyaraat al-Fiqhiyyah, p. 175;
Al-Manthoor, 2/377; and Al-Asnawee, At-Tamheed, p. 230.
115
See Majmoo al-Fataawaa, 29/36; Al-Ikhtiyyaraat al-Fiqhiyyah, p. 279; Tabsirat al-Hukkaam, 1/42; and
Mueen al-Hukkaam Fee MaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, p. 198.

134
Al-Adl (49)
Part Six: The Relationship between the Condition that
the Judge Must Be a Native of the Country where He
holds his Office and His Issuing a Judgment Based on
his Own Knowledge
Another issue which would naturally be raised when discussing the
condition that the judge must be a native of the country where he holds
his office is the judges pronouncement of a judgment based on his own
knowledge. A question also arises here, Now that a native judge is
required to pass judgment based on his own knowledge and that being a
native affects his judgments, does this mean that being a native of the
country where he holds his office affects his judgments in any way if he
bases it on his own knowledge?
In fact, this is one of the issues about which scholars have expressed
a difference of opinion. The judges knowledge means his knowledge of
the reason behind passing his judgment. This knowledge is the
information he has which is confirmed through hearing, seeing or
witnessing the reason which has prompted him to issue his judgment
regarding the dispute presented before him, whether this takes place
before or after he has assumed his judicial duties.
116

To illustrate, if a judge becomes aware of an incident through
hearing, seeing or overhearing a person who admits that he owes
somebody else some money, or has come to know that a person has
become in possession of some property but another person disputes
with him concerning its possession, then the parties to the dispute
present their cases before the judge, should he pass judgment based on
his own knowledge or should he make it incumbent upon the litigants to
produce the different well-known forms of evidence?
Before delineating the similarities and differences between these and
the issue under study, that is, the condition that a judge must be a native
of the country where he holds his office, we must first briefly state

116
Mueen al-Hukkaam Fee MaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, p. 121; Tabsirat al-
Hukkaam, 2/47; Nidhaam al-Qadhaa fee al-Fiqh al-Islaamee, p. 177; and Qadhaa al-Qaadhee Bi
IlmihFee al-Fiqh al-Islaamee, Al-Adljournal, Vol. 22, p. 47.

135
Al-Adl (49)
scholars differences regarding the judges judgment based on his own
knowledge.
Scholars have expressed three different opinions concerning this
point:
First Opinion: It is not permissible for a judge to pass judgment
based on his knowledge. This is the view of Imaam Maalik,
117
the
approved and established opinion in Imaam Ahmads school of
jurisprudence,
118
the view held by Muhammad ibn al-Hasan from
among the Hanafite jurists
119
and the opinion of a large group of past and
present jurists.
120
It is also the opinion adopted by the Saudi legal system
and all evidence laws
121
in Arab countries.
122
According to them,
impermissibility here, however, does not imply that a judge cannot issue
a judgment based on his own knowledge altogether; they have only
stated this so that this would not afford bad judges the opportunity to
deal unjustly between litigants and so that the judge may not be subject
to any suspicion whatsoever.
Second Opinion: It is absolutely permissible for a judge to pass
judgment based on his own knowledge. This is the approved and
established opinion of the Shaafiite jurists,
123
one of the views held by
Imaam Ahmad,
124
the opinion of Ibn Hazm adh-Dhaahiree who goes as

117
Ibn al-Qaass, Adab al-Qaadhee, 1/147; Bidaayat al-Mujtahid along with Al-Hidaayah, 8/665; and Al-
Muhallaa, 8/523.
118
See Al-Mughnee, 14/31; Bidaayat al-Mujtahid, 8/665; and At-Turuq al-Hukmiyyah, p. 204.
119
See Badaai as-Sanaai, 5/446; Al-Mughnee, 14/31; and Al-Muhallaa, 8/523.
120
See Al-Muhallaa, 8/523; Bidaayat al-Mujtahid, 8/665; Al-Mughnee, 14/31;Badaai as-Sanaai, 5/445-
6;Radd al-Muhtaar, 8/140; and Mughnee al-Muhtaaj, 5/296.
121
When a dispute, whether relating to a civil or criminal matter, reaches the court there will always
be a number of issues which one party will have to prove in order to persuade the court to find in
his or her favour. The law must ensure certain guidelines are set out in order to ensure that
evidence presented to the court can be regarded as trustworthy. The lawof evidence governs the
use of testimony(e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical
objects) or other documentary material which is admissible (i.e., allowed to be considered by the
trier of fact such as jury) in a judicial or administrative proceeding (e.g., a courtof law).
(Translators Note)
122
See Qadhaa al-Qaadhee Bi Ilmih Fee al-Fiqh al-Islaamee, Al-AdlJournal, Vol. 22, p. 47.
123
See Ibn al-Qaass, Adab al-Qaadhee, 1/148; Al-Maawardee, Adab al-Qaadhee, 2/368; Al-Mughnee,
14/12; Al-Muhallaa, 8/524; Badaai as-Sanaaii, 5/438; Mughnee al-Muhtaaj, 6/262; and Al-
Mughnee, 14/31.
124
See Al-Mughnee, 14/31; and At-Turuq al-Hukmiyyah, p. 204.

136
Al-Adl (49)
far as stating that doing so is an obligatory act,
125
the view of Abu
Haneefah.
126
Abu Haneefah, however, stipulates the conditions that the
judge is not allowed to issue a judgment regarding the rights of Allah or
in matters he knew before his appointment to the office.
Third Opinion: It is permissible forthe judge to pass judgment based
on his own knowledge except in matters relating to punishments fixed
for certain crimes in the Quran and the Sunnah (hudood). This is the
opinion of a large number of scholars from among the Shaafiites
127
and
one of the views held by Imaam Ahmad.
128
It has also been attributed to
the two companions
129
of Imaam Abu Haneefah,
130
and has been adopted
by numerous scholars.
131

This difference of opinion exists in other than the following forms, in
which case Muslims are agreed that a judge can issue judgment based
on his knowledge:
1. Ruling based on ones knowledge in matters relating to bearing
witness to the witnesses integrity or otherwise.
132

2. It is not permissible for the judge to pass judgment contrary to
his knowledge even if he has proof.
133

3. The judge may pass judgment based on his own knowledge
regarding those incidents that take place in the courtroom, such as lies

125
See Al-Muhallaa, 8/523; and At-Turuq al-Hukmiyyah, p. 206.
126
14/12; Al-Muhallaa, 8/523; Badaai as-Sanaaii, 5/445-6; Mughnee al-Muhtaaj, 6/262; and Al-
Mughnee, 14/31.
127
See Al-Maawardee, Adab al-Qaadhee, 2/370; An-Nawawee, Munhaaj at-Taalibeen, 6/296-7; and At-
Turuq al-Hukmiyyah, pp. 204-6.
128
At-Turuq al-Hukmiyyah, p. 204; and Al-Mubdi, 10/62.
129
See Al-Maawardee, Adab al-Qaadhee, 2/370; Al-Muhallaa, 8/523; and Badaai as-Sanaaii, 5/446.
130
The two companions of Imaam Abu Haneefah are YaoobibnIbraaheem al-Ansaaree, commonly
known as Abu Yoosuf, and Muhammad ibn al-Hasan ash-Shaybaanee. (Translators Note)
131
See Al-Muhallaa, 8/523; At-Turuq al-Hukmiyyah, p. 206; Mughnee al-Muhtaaj, 6/297; Mu'een al-
Hukkaam Fee MaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, p. 121; Nidhaam al-Qadhaa Fee ash-
Shareeah al-Islaamiyyah, pp. 177-81; and Qadhaa al-Qaadhe Bi Ilmih Fee ash-Shareeah al-Islaamiyyah,
p. 92.
132
14/23; Mughnee al-Muhtaaj, 6/269; andTabsirat al-Hukkaam, 2/47.
133
See Ibn al-Qaass, Adab al-Qaadhee, 1/147; An-Nawawee, Minhaaj at-Taalibeen, 6/269; andTabsirat
al-Hukkaam, 2/47

137
Al-Adl (49)
told by some litigants and physical assault of a litigant, without the need
for evidence.
134

4. The judge may pass judgment in the courtroom following the
litigants declarations.
135

The question that arises here now is: How can we possibly combine
or differentiate between this issue and the question under study, namely
the condition that a judge must be a native of the country where he
holds his office?
For those who argue that it is permissible for the judge to pass
judgment based on his own knowledge or with a given condition, there
is no contradiction whatsoever between the two issues, for the judge
conducts his judicial duties based on the information available to him.
This includes the information he has had as a result of being a native of
the country where he holds his office, and this can be readily obtained
from his knowledge of the people around him, the general
circumstances and prevailing customs in the country, their expressions
and idioms, those statements which are considered offending and those
which are not, the prevailing practices among them relating to general
dealings, rights and punishments, among other things.
In fact, proponents of this view consider it absolutely possible for the
judge to pass judgment based on his own knowledge, whether due to
the fact he is a native of the country where he holds his office or
otherwise. It is the proponents of this opinion whose view may
contradict the condition that a judge must be a native of the country
where he holds his office, or that such a stipulation is to no avail, for the
simple fact that he is not permissible to rely on whatever information is
available to him, including the knowledge he obtains owing to his being
a native of the country where he holds his office.
However, there are some cases where being a native of the country
where the judge holds his office does not conflict with not allowing him
to pass judgment based on his own knowledge. These include the
following:

134
See Al-Mabsoot, 9/124; Tabsirat al-Hukkaam, 2/48; and Qadhaa al-Qaadhee Bi IlmihFee al-Fiqh al-
Islaamee, p. 50.
135
See Tabsirat al-Hukkaam, 2/48-9; and Qadhaa al-Qaadhee Bi IlmihFee al-Fiqh al-Islaamee, p. 50.

138
Al-Adl (49)
1. His judgment based on his own knowledge, by accepting or
rejecting witnesses statements. Those who stipulate the condition that a
judge must be a native of the country where he holds his office contend
that such a judge is generally aware of the witnesses circumstances and
can tell who has integrity and who lacks it.
Thus, a judge can pass judgment based on his own knowledge, and
this will certainly assist him in establishing the truth and ascertaining
the witnesses circumstances by finding out about them from those
examiners who investigate the witnesses character.
2. The Judge may rely on the litigants statements and expressions
given his knowledge of their intent, such as their indirect declarations of
legal intent relating to divorce and accusation of adultery (qadhf). It may
be mistakenly assumed that the judges knowledge in this case may
affect it or that it may lead to the disagreement as to not allowing the
judge to pass judgment based on his own knowledge. In fact, no
disagreement should arise here, for the judge is absolutely allowed to
issue judgment based on his own knowledge for the simple reason that
peoples general circumstances and prevailing customs and practices are
bound to assist him in passing the right judgment. They are not means
of verification; preventing the judge from passing judgment based on his
own knowledge essentially pertains to means of confirming the
judgment and not ascertaining its execution as is the case with the
prevailing customs and practices which will assist the judge, if he relies
on them, in administering justice, which is the chief and noblest goal the
judge must strive hard to attain.
3. In this case, which is similar to the previous one, the judge, being
a native of the country where he holds his office and aware of the
importance of this factor in having an effect on his knowledge, in
establishing means of property ownership and property transfer, such as
the various forms of possession (qabdh), including exchange and the
mode which embraces proposal and acceptance, and the reclamation of
dead lands and how this could possibly be done, among other things.
All these are actually generally known to people in the country or at
least to most of them, as they constitute a form of customs and traditions
which are known to most people. Therefore, even if these are related in
some way to the judges knowledge, it remains to be said that the reason

139
Al-Adl (49)
why it is not permissible for the judge to pass judgment based on his
knowledge does not actually exist in this case, as they constitute matters
which are generally known to all people living in the country. Therefore,
it is not only the judge who is cognizant of such practices, which leads
us to say that it is absolutely permissible for him to employ such
information which unquestionably constitute one of the best means of
settling disputes and convincing litigants with things with which they
are familiar in their country.
4. The judge passes judgments in the form of discretionary
punishments and decides how these may be inflicted and what crimes
may or may not subject the perpetrator to them. He also relies on his
own knowledge to decide which crimes necessitate inflicting such
punishments and the circumstances under which he inflicts
punishments on the perpetrators to deter them, among other things,
based on his own knowledge of the prevailing customs and practices of
the country where he holds his office. This, again, does not form part of
judging based on ones own knowledge about which differences as to its
permissibility or impermissibility have arisen. Rather, it is a form of
ascertaining the existence of the cause for doing so in the text which
orders the infliction of a discretionary punishment and grants the judge
discretionary authority to inflict a suitable discretionary punishment on
the perpetrator. Therefore, this case does not represent one of the cases
in which the judge passes judgment based on his own knowledge which
some scholars consider to be impermissible.
In conclusion, the fact that the judge is a native of the country where
he holds his office and is cognizant with the prevailing customs and
practices of this country does not necessarily lead him to pass judgment
based on his own knowledge, which some scholars consider to be
impermissible. Rather, it is a way of verifying the rule of law (tahqeeq al-
manaat)
136
and implementing the required ruling in the textin some

136
Al-Ghazaalee defines this form of ijtihaadas a basis of the rule of law (manaat al-hukm) already
known by the text or by consensus. The function of a jurist is to verify this basis of rule in various
cases and situations, where it applies and where it does not, by employing his conjecture (dhann).
To illustrate this definition he gives several examples: to appoint a caliph by exercising ijtihaad to
appoint governors and judges, to determine the quantity in the rules, which involve quantities
(muqaddaraat), to determine the amount of sufficiency (taqdeeral-kifaayah) in supplying provision
to one's relatives for giving them financial aid, to determine the like things for payment of

140
Al-Adl (49)
cases. Furthermore, it does not lead to subjecting the judges judgments
to suspicion due to some knowledge available to him but not to others.
In this case, he passes judgment based on something known not only to
him but also to people in the city or country where he holds his office. In
this way, the suspicion which has been used as reasonable grounds for
not allowing the judge to pass judgment based on his own knowledge is
dispelled. Allah knows best.
Section Two: Qadhaa: The Effect of Stipulating the
Condition that a Judge Must Be a Native of the
Country where he Holds his Office on his Judicial
Decisions
The stipulation that a judge must be a native of the country where he
holds his office definitely has some effects on the judgments he passes.
As a matter of fact, Muslim jurists have discussed this issue in their
writings in great detail, under such names as passing judgments based
on the prevailing customs and practices,
137
stating a wide variety of

compensation for the things damaged or perished (mutlafaat), compensation for offences
(jinaayaat), and to determine the like animal to pay compensation for killing a game within the
prohibited area of the sacred territory (al-haram) or in the state of ihraam during Hajj. According
to the Quran, the rich are required to provide maintenance and financial support to their poor
relatives. The manaat or basis of the rule is sufficiency (kifaayah), which is known by the Quranic
text and by ijmaa (consensus). But how much will be sufficient for a relative is to be determined
by conjecture and probable opinion, i.e., ijtihaad. If a pilgrim kills a game, he shall pay
compensation for it. The Quran says, "O you who believe, kill not game while you are on
pilgrimage. And whoever among you kills it intentionally the compensation thereof is the like of
what he has killed." According to this verse a like compensation for the game is obligatory on the
pilgrim. This like compensation will be determined by ijtihaad. A cow, for instance, is
compensation for a wild donkey. It has been determined by analogy and reasoning. If a man
loses or kills another man's horse, he shall pay compensation for the horse to the owner. The
amount of compensation or the price of the horse, say, a hundred dirhams, will be determined by
ijtihad. In these cases the basis of the rule (manaat) is known by the text (nass) or by consensus
(ijmaa). There is no need of deriving it. But it is difficult to realize it with certainty as to the case
to which it applies and to the case to which it does not. Hence probable signs
(amaaraatdhanniyyah) are used for its verification. (Translators Note)
137
See Al-Qawaaid al-Husnaa, 1/360-1; At-Turuq al-Hukmiyyah, p. 22; Tabsirat al-Hukkaam, 2/67;
Mu'een al-HukkaamFeeMaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, pp. 128; Al-Hattaab,
Mawaahib al-Jaleel, 9/380; Al-UrfWal-Aadah Fee rayi al-Fuqahaa, p. 151; and Al-UrfWal-Amal Fee
al-Madh-hab al-Maalikee, p. 119ff, maxim no. 141.

141
Al-Adl (49)
applications of Islamic jurisprudence as to the judges judgments in this
respect.
138

In the following pages, I will briefly mention some examples based
on some aspects of Islamic jurisprudence, stating the significance of the
judges knowledge of the prevailing customs and practices, in addition
to being a native of the country where he holds his office, and the
importance of these factors in passing judgments.
Part One: The Effect of this Condition on the
Accurate Determination of the Qualities of
Adaalah
139
and Murooah
140

Determination of such qualities must incontestably be done
according to Islamic criteria; as for determining acceptable and
unacceptable acts and attributes, these may be known from established
and acceptable customs and practices.
141

Ahmad al-Fayoomee mentions that adaalah is a quality which
requires keeping away from acts that are bound to breach rules of
chivalry and self-respect (murooah). Committing a little lapse or
changing words apparently does not constitute a breach of such rules if

138
For further discussion of this issue, see Al-UrfWal-Amal Fee al-Madh-hab al-Maalikee, p. 120.
139
Scholars have furnished different definitions for the word 'adaalahand 'adl, but all these
definitions have more or less the same sense, namely, 'the one who enjoys the quality of being as
such is known for his agreeable words and deeds which are dictated by his uprightness,
devoutness and sense of honour.IbnRushd defined adaalahthus: It is a consistent state which
prompts acts of piety by avoiding the major sins, being cautious about committing the minor
ones and eschewing vices. This definition is similar to the one provided here. See IbnFarhoon,
Tabsirat al-Hukkaam, Vol. 1, p. 173. (Translators Note)
140
In the terminology of Muslim jurists, murooah, just as its linguistic meaning more or less
suggests, means to keep away from those acts one has abandoned which normally entail censure
and disapproval according to the established practices. Some scholars also define it as observing
the same patterns of behaviour of ones equals in ones time and country and avoiding being
censured or disapproved of. Some others define it as not doing any permissible acts which do not
normally befit him or his equals in such a way as to make one the subject of ridicule and
mockery. Some others also define it as protecting oneself against improper conduct and not
bringing disgrace upon oneself. Others define it as doing only those acts which adorn ones
character and avoiding those ones which are bound to tarnish it. (Translators Note)
141
See Dr. Yaqoob al-Baa Husayn,Qaaidat Al-AadahMuhkamah (The Maxim Cultural Usage Shall
Have the Weight of Law), pp. 143-4.

142
Al-Adl (49)
this happens only once, as one is subject to forgetfulness, making
mistakes or providing the wrong interpretation. However, if this
happens time and again, then it becomes obvious that such rules are
intentionally breached. A persons customs and his general
circumstances which involve such things as his dress, his dealings,
among other things, are to be carefully observed. If he behaves in an
acceptable manner in blatant contradiction to his established customs
and general circumstances without necessity, then his quality of adaalah
is tarnished.
142

Part Two: The Effect of this Condition on Some Issues
relating to Marriage
This includes the following:
1. Its impact on determining equality in marriage (kafaaah). This
involves marrying a partner who shares similar traits, for similarity
between spouses will certainly help them understand and adjust to one
another. This can only be found out due to ones familiarity with the
prevailing customs and practices in society.
143

2. If a dispute arises between husband and wife regarding home
contents, then whatever is generally known to belong to men according
to the prevailing customs should go to the husband, and whatever is
generally known to belong to women should go to the wife. However,
whatever is commonly known to belong to both men and women must
go to the man, being the breadwinner and family supporter who is
commonly known to assume all financial obligations.
144

3. According to Imaam Ahmad and Imaam Maalik, if an argument
between husband and wife arises over maintenance, and the wifeclaims
that he does not support her, her claim is not to be accepted, nor is her

142
Al-Misbaah al-Muneer, pp. 236-7. For a definition of the term adaalah, see Al-Maawardee, Adab al-
Qaadhee, 1/634; Al-Muqni, 3/689-90; Al-Kaafee, 4/522-3; and Al-Insaaf, 12/43-6.
143
Dr.Yaqoob al-Baa Husayn,Qaaidat Al-AadahMuhkamah (The Maxim Cultural Usage Shall Have
the Weight of Law), p. 144.
144
See Qawaaid al-Ahkaam, 2/47; Mu'een al-Hukkaam Fee MaaYataraddaduBayna al-KhasmayniMinal-
Ahkaam, p. 129; Tabsirat al-Hukkaam, 2/68; Al-UrfWal-Aadah, pp. 156-7; and Al-UrfWaAtharuhu
Fee ash-Shareeah Wal-Qaanoon, p. 234.

143
Al-Adl (49)
claim that he has not previously provided her with any clothes, as this
evidently contradictsthe prevailing customs.
145

4. A man sends a gift to a woman or buys her something after
consummation of marriage. He says to her that what he has given her or
bought her is part of the bridal gift (mahr). The woman insists that it is a
gift. In this case the husbands statement is to be accepted except in
matters relating to consumable gifts, for in matters other than this the
prevailing customs clearly support his statement.
146

Part Three: Effect of this Condition on Knowing about
Dead Land Reclamation
This covers a number of issues including knowledge of the manner
of reclaiming dead lands, for scholars have expressed a difference of
opinion regarding the manner of reclaiming a dead land whereby the
person who undertakes to reclaim it becomes the legal owner of such a
land. Some scholars argue that he can acquire legal ownership of the
land by developing it, and this is left to the prevailing customs and
practices, for the Prophet (may Allahs peace and blessings be upon him)
did not specify the manner in which this could be done,
147
and so this
should be settled according to the prevailing customs and practices.
148

As Ibn Qudaamah states, the Shareeah only states that ownership of
a dead land can be acquired by developing it but does not give details as

145
See Tabsirat al-Hukkaam, p. 69.
146
See Mu'een al-Hukkaam Fee MaaYataraddaduBayna al-KhasmayniMinal-Ahkaam, p. 129
147
This is based on the hadeeth in which the Prophet (may Allah's peace and blessings be upon him)
said, Whoever revives some wasteland has the right to keep it. This hadeeth was reported by Al-
Bukhaaree on the authority of Umar, Imaam Ahmad in hisMusnad and At-Tirmidhee on the
authority of Jaabiribn Abdullaah and other companions. Al-Bukhaaree also reported it on the
authority of Aaishah (may Allah be pleased with her) in the following words: Whoever reclaims
and cultivates a barren land which does not belong to anyone has the right to keep it. It was also
reported by At-Tirmidhee on the authority of Jaabiribn Abdullaah. Sheikh Al-Albaanee
categorised it as saheeh (authentic). For further details of this hadeeth, see Fath al-Baaree, 5/18;
Jaami At-Tirmidhee along with Tuhfat Al-Ahwadhee, 4/524-5; Nasbar-Raayah,4/288; Jaami al-Usool,
1/347-51; and Irwaa al-Ghaleel, 5/353 and 6/4.
148
See Al-Kaafee Fee Fiqh al-Imaam Ahmad, 2/437; Al-Mughnee, 8/177; Qaaidat al-AadahMuhkamah, p.
148; Dr.Yaqoob al-Baa Husayn, Qaaidat Al-AadahMuhkamah (The Maxim Cultural Usage Shall
Have the Weight of Law), p. 148; and AadilQootah, Al-Urf (The Prevailing Customs), 1/58.

144
Al-Adl (49)
to the manner in which this could be done. In this case, we must resort
to the prevailing customs and practices to settle the matter.
149

Scholars maintain that reclamation of dead lands can be realised by
surrounding the land with secure fencing according to the prevailing
customs and practices.
150

Ibn Qudaamah writes in this respect, This, however, differs from
country to country and people do this according to the prevailing
customs and practices. If it is common practice to reclaim a dead land by
surrounding it with a brick wall, as is the common practice in
Hawraan
151
and Palestine, or with mud walls as is the common practice
in the fertile lands of Damascus, or with a wooden or reed fence, as is
the common practice in the Jordan Valley, then this certainly constitutes
reclamation of a dead land depending on the prevailing customs. It
would be better, however, if it is surrounded with fencing that is much
stronger than what is commonly prevalent.
152

It is clear, therefore, that the prevailing customs and practices serve
to determine what may be termed a dead land and the manner in which
it could be reclaimed. If the judge is a native of the country where he
holds his office, he can easily decide how dead land reclamation can be
realised by merely considering the prevailing customs. Land
reclamation, as Ibn Qudaamah states above, differs from country to
country, and thus it is not right to impose a custom that is prevalent in
one country on the people of a different country, as some present-day
judges unfortunately do.
Scholars have also mentioned that it is not permissible to reclaim any
land that is close to civilisation or one that contains resources which are
indispensable to the welfare of the community, such as roads, water
reservoirs, squares, dumping sites, places where people keep their tools,
tend their animals or where their wells are located, cemeteries, and the

149
Al-Mughnee, 8/177.
150
See Al-Kaafee Fee Fiqh al-Imaam Ahmad, 2/437; Al-Mughnee, 8/176-7; Al-Muharrar, 1/367; An-
Nawawee, Minhaaj at-Taalibeen along with Mughnee al-Muhtaaj, 3/503; Sharh al-Kawkab al-Muneer,
4/452; and Al-Ghamraawee, As-Siraaj al-Wahhaaj, p. 299.
151
Hawraan is a volcanic plateau, a geographic area located in southwestern Syria and extending
into the northwestern corner of modern-day Jordan. (Translators Note)
152
Al-Mughnee, 8/177.

145
Al-Adl (49)
like. IbnQudaamah states that all Hanafite jurists are unanimously
agreed on this issue.
153

A question arises here. How can we determine the dead land that is
close to civilisation which must not be reclaimed and one that far from
civilisation which can be reclaimed? Ibn Qudaamah also makes this
point clear by stating that the prevailing customs and practices must be
taken into account to determine this.
154

Part Four: The Effect of this Condition on Claims
This includes, among other things:
1. Turning down the claim if it is not acceptable according to the
prevailing customs. If it goes against the prevailing customs, then it is
not to be heard altogether.
155

To illustrate, a man has a house, which he has had demolished and
built again, rented out and added more floors to it, and this has been
going on for years. Another man has been watching him doing all these
things all this time, without objecting to what he has been doing or
claiming that he has a share in the property. There is nothing that
prevents him from claiming ownership of the property, nor is there any
relationship whatsoever between him and the other man, nor any share
in inheritance or anything about which close relatives may show
leniency. This man then presents a claim to the court, stating that the
property is his and wants to establish evidence to this effect. It is
obvious that his claim is groundless and need not be heard in the first
place, let alone ask him to produce evidence. In this case, the house
remains the first mans property, as the prevailing customs clearly
testify against such an unfounded claim.
156

153
See Al-Mughnee, 8/149
154
Ibid., 8/150.
155
See Al-Furooq, 4/80-1; Tanqeeh al-Fusool, p. 454; Ilamm al-Muwaqqieen, 3/273; At-Turuq al-
Hukmiyyah, p. 126; Ibn al-Wakeel, Al-Ashbaah Wan-Nadhaair, 2/405; Tabsirat al-Hukkaam, 1/110-1;
Al-UrfWal-Aadah, p. 152; Al-UrfWaAtharuhu Fee ash-Shareeah Wal-Qaanoon, p. 233; and As-Sltah
at-Taqdeeriyah, p. 212.
156
See At-Turuq al-Hukmiyah, pp. 125-6; Al-UrfWal-Aadah, p. 152; and Al-UrfWaAtharuhu Fee ash-
Shareeah Wal-Qaanoon, p. 233.

146
Al-Adl (49)
2. Understanding the litigants statements when they file a claim in
the light of the customs prevailing in society. The judge must not restrict
himself to the jurists statements recorded in their books.
157

Part Five: The Effect of this Condition on Determining
Safe Custody (Hirz) in Theft Crimes
Determining the nature of safe custody (hirz) can be done by the
objects kept in it and their type according to the prevailing customs in
this respect, and this of course varies from time to time and from place
to place.
158
Determination of what may or may not be considered safe
custody (hirz) can only be established by the judge in order to inflict the
punishment for theft on the perpetrator or a discretionary punishment if
it turns out that such safe custody is not considered to be as such for the
kind of personal belongings kept in it. If the judge is a native of the
country where he holds office, this will assist him a great deal in
determining the nature of the safe custody.
Part Six: The Effect of this Condition on Discretionary
Punishments Rulings
This includes the following:
1. Determining crimes which require the imposition of
discretionary punishments and the nature of the punishment to be
inflicted on the perpetrator. As the Quran and the Sunnah have not
specified any particular discretionary punishments, it has left its
determination to the prevailing customs. For instance, abuse requires the
imposition of a discretionary punishment, but the determination of

157
See Tabsirat al-Hukkaam, 2/70; Al-UrfWal-Aadah, p. 154; and Al-UrfWaAtharuhu Fee ash-Shareeah
Wal-Qaanoon, p. 233.
158
See Al-Majmoo al-Mudahhab, 1/142; At-Tashree al-Jinaaee al-Islaamee, 2/556; and Dr.Yaqoob al-
Baa Husayn, Qaaidat Al-AadahMuhkamah (The Maxim Cultural Usage Shall Have the Weight of
Law), p. 147.

147
Al-Adl (49)
whether a certain word or phrase is considered abuse or otherwise is left
to the prevailing customs.
159

2. Only the prevailing customs would determine whether or not a
certain thing or act may be considered a form of discretionary
punishment.
160
Indeed, discretionary punishments differ from one
country to another and from time to time. Having someone take off his
taylusaan
161
in Egypt is a form of discretionary punishment while it is a
form of bestowing honour on the person who is asked to take it off in
Syria.
162

3. Determining the social status of people when determining the
discretionary punishment. Scholars have mentioned four types of social
status.
163
.
It is clear, therefore, that the judge cannot possibly determine the
general circumstances of these people if he is not a native of the country
where he holds his office or if he does not seek the advice of experts. His
knowledge in this respect also becomes definitive, not speculative.
These are some of the examples which clearly show that the judges
duty depends to a large degree on the customs and practices prevalent
in society. If the judge is a native of this society where he holds his
office, this will certainly assist him in passing the right judgment
regarding the case presented before him.

159
See Radd al-Muhtaar, 6/121; Al-UrfWal-Aadah, pp. 246-8; and Qaaidat Al-AadahMuhkamah (The
Maxim Cultural Usage Shall Have the Weight of Law), p. 157.
160
See Al-UrfWal-Aadah, pp. 248-50; and Qaaidat Al-AadahMuhkamah (The Maxim Cultural Usage
Shall Have the Weight of Law), p. 157; and As-Sultah at-Taqdeeriyah Lil Qaadhee Fee al-Fiqh al-
Islaamee, p. 368.
161
Taylusaan is a shawl-like black garment worn over the head and shoulders. See LisaanalArab,
6/124.
162
Al-Furooq, 4/183.
163
See Al-UrfWal-Aadah, pp. 248; Ad-Durr al-Mukhtaar, 6/104; Radd al-Muhtaar, 6/104; and At-
Tazeer Fee ash-Shareeah al-Islaamiyyah, p. 469.

148
Al-Adl (49)
Conclusion
The following is a brief summary of the main points tackled in the
paper:
1. Qadhaa (judgeshipthe position, office, or function of a judge
the position of administering justice) depends to a large extent on the
person who undertakes it, that is the judge who must meet a number of
conditions in order to be successful in carrying out his judicial duties,
issuing sound judgments to settle the litigants disputes to their
satisfaction.
2. The conditions the judge must meet are of two types: (1) The
required conditions which entitle him to the post of judge and (2) the
recommended conditions which will assist him a great deal in carrying
out his judicial duties in the best possible manner. Indeed, The condition
that a judge must be a native of the country where he hold his office,
which is the subject of the present paper, constitutes a recommended
condition, for it is bound to help him be aware of peoples general
circumstances, common expressions and idioms and what they mean by
them. This would undoubtedly assist him in passing the right judgment
3. The various juristic principles point to the importance of taking
into account the prevailing customs and practices before passing
judgment. This will certainly make the judges rulings and decisions
successful and practical as they will suit peoples general circumstances
and encourage them to obey Allahs rulings and be content with them.
4. There is a difference between the judges passing judgment
based on his own knowledge and the effect of his being a native of the
country where he holds his office on issuing judgments, depending on
whatever information is available to him. The fact that the judge is a
native of the country where he holds his office and is cognizant with the
prevailing customs and practices of this country does not necessarily
lead him to pass judgment based on his own knowledge, which some
scholars consider to be impermissible. Rather, it is a way of verifying the
rule of law (tahqeeq al-manaat)
164
and implementing the required ruling in
the text in some cases. Furthermore, it does not lead to subjecting the

164
See footnote 136. (Translators Note)

149
Al-Adl (49)
judges judgments to suspicion due to some knowledge available to him
but not to others. In this case, he passes judgment based on something
known not only to him but also to people in the city or country where he
holds his office. In this way, the suspicion which has been used as
reasonable grounds for not allowing the judge to pass judgment based
on his own knowledge is dispelled.
5. The effect of passing judgments by relying on the prevailing
customs and practices has become evident in a number of aspects of
Islamic jurisprudence, regarding which I have mentioned a few
examples. This calls for the need to appoint judges who are natives of
the country where they hold their office to judge by taking into account
the prevailing customs and practices and thus champion the truth in a
quicker and effortless manner.
As for the recommendations, these can be summarised as follows:
1. Islamic studies colleges must carefully select its students from
different parts of the country. These colleges must also be set up in
different parts of the country in order to attract bright students and then
carefully select those among them who meet the qualities of becoming
judges with a view to realising this noble goal.
2. Appointment authorities must take into account selection
distribution between the various parts of the country so that from each
town or city only those who are considered to be suitable for the post.
3. If it is next to impossible to appoint a judge who is a native of the
country where he holds his office, it is better to appoint a group of
experts who are familiar with peoples general circumstances and the
customs and practicing prevalent in society to assist the judge in
reaching the right decision.
165
This is the very duty carried out by the
judges aides in Saudi Arabia courts, where there are record clerks,
process servers, interpreters, experts and public treasury administrators
in addition to such committees as dispute settlement committees and
arbitration committees whose role is to help record the case and make it
clear to the judge in order for him to reach the right legal decision.

165
See Tabsirat al-Hukkaam2/78; and Mu'een al-Hukkaam Fee Maa Yataraddadu Bayna al-Khasmayni
Minal-Ahkaam, pp. 130.

150
Al-Adl (49)
These are the most important conclusions of the present paper and the
recommendations I have reached regarding the question under study. It
remains to be said, however, that Allah knows best. We pray to Allah to
bestow His peace and blessings be upon our Prophet Muhammad, as
well as upon his pure family and noble companions.

Nativity of The Judge and Its Effect On His Judicial Decisions

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