Superphysics
The office of judge
5 minutes • 1035 words
This is one of the positions under the caliphate. It settles suits and breaks off disputes and dissensions, following the religious laws laid down by the Qur’an and the Sunnah.
Therefore, it is one of the positions that belongs to the caliphate and falls under it generally. At the beginning of Islam, the caliphs exercised the office of judge personally.
They did not permit anyone else to function as judge in any matter. The first caliph to charge someone else with exercise of (the office of judge) was ‘Umar. He appointed Abu d-Darda’ 368 to be judge with him in Medina, he appointed Shurayh as judge in al-Basrah, and Abu Musa al-Ash’ari as judge in al-Kufah. On appointing (Abu Musa), he wrote him the famous letter that contains all the laws that govern the office of judge, and is the basis of them.
He writes:
Understand the depositions that are made before you, for it is useless to consider a plea that is not valid.
Consider all the people equal before you in your court and in your attention, so that the noble will not expect you to be partial and the humble will not despair of justice from you.
The claimant must produce evidence; from the defendant, an oath may be exacted.
Compromise is permissible among Muslims, but not any agreement through which something forbidden would be permitted, or something permitted forbidden. If you gave judgment yesterday, and today upon reconsideration come to the correct opinion, you should not feel prevented by your first judgment from retracting; for justice is primeval, and it is better to retract than to persist in worthlessness.
Use your brain about matters that perplex you and to which neither Qur’an nor Sunnah seem to apply. Study similar cases and evaluate the situation through analogy with those similar cases.
If a person brings a claim, which he may or may not be able to prove, set a time limit for him. If he brings proof within the time limit, you should allow his claim, otherwise you are permitted to give judgment against him. This is the better way to forestall or clear up any possible doubt.
All Muslims are acceptable as witnesses against each other, except such as have received a punishment 370 provided for by the religious law, such as are proved to have given false witness, and such as are suspected (of partiality) on (the ground of) client status or relationship, for God, praised be He, forgives because of oaths [? ] 371 and postpones (punishment) in face of the evidence.Avoid fatigue and weariness and annoyance at the litigants.
For establishing justice in the courts of justice, God will grant you a rich reward and give you a good reputation. Farewell.
Although the personal exercise of the office of judge was to have been the task of (the caliphs), they entrusted others with it because they were too busy with general politics and too occupied with the holy war, conquests, defense of the border regions, and protection of the center.
These were things which could not be undertaken by anyone else because of their great importance. They considered it an easy matter to act as judge in litigation among the people and, therefore, had themselves represented by others in the exercise of (the office of judge), so as to lighten their own (burden).
Still, they always entrusted the office only to people who shared in their group feeling either through (common) descent or their status as clients.
They did not entrust it to men who were not close to them in this sense. The laws and conditions that govern the institution (of the judiciary) are known from works on jurisprudence and, especially, from books on administration (al-Ahkam assultaniyah).
In the period of the caliphs, the duty of the judge was merely to settle suits between litigants. Gradually, later on, other matters were referred to them more and more often as the preoccupation of the caliphs and rulers with high policy grew.
Finally, the office of judge came to include, in addition to the settling of suits, certain general concerns of the Muslims, such as supervision of the property of insane persons, orphans, bankrupts, and incompetents who are under the care of guardians; supervision of wills and mortmain donations and of the marrying of marriageable women without guardians (wall) to give them away 372 according to the opinion of some authorities; supervision of (public) roads and buildings; examination of witnesses, attorneys, and court substitutes, 373 to acquire complete knowledge and full acquaintance relative to their reliability or unreliability.
All these things have become part of the position and duties of a judge. Former caliphs had entrusted the judge with the supervision of torts. 374 This is a position that combines elements both of government power and judicial discretion.
It needs a strong hand and much authority to subdue the evildoer and restrain the aggressor among two litigants. In a way, it serves to do what the judges and others are unable to do. It is concerned with the examination of evidence, with punishments not foreseen by the religious law, with the use of indirect and circumstantial evidence, with the postponement of judgment until the legal situation has been clarified, with attempts to bring about reconciliation between litigants, and with the swearing in of witnesses. This is a wider field than that with which the judges are concerned.
The first caliphs exercised that function personally until the days of the ‘Abbasid al-Muhtadi. Often, they also delegated it to their judges. ‘All, 375 for instance, (delegated torts) to his judge, Abu Idris al-Khawlani; 376 al-Ma’min to Yahya b. Aktham; 377 and al-Mu’tasim to Ibn Abi Du’id.378 They also often entrusted the judges with leadership of the holy war in summer campaigns. Yahyi b. Aktham thus went on a summer campaign against the Byzantines in the days of al- Ma’mun. The same was done by Mundhir b. Sa’id, 379 judge under the Spanish Umayyad ‘Abd-ar-Rahman an-Nasir.
Making appointments to these functions was the task of the caliphs or of those to whom they entrusted it, such as a minister to whom full powers were delegated, or a ruler who had gained superiority.
