The Islamic System of Judiciary in the Qur'an 5

The Islamic System of Judiciary in the Qur'an 5

The Rules of Conduct for the Judge

The first part of the verse is a prohibition against misplaced fear, as a regulation of the faculty of Anger, and the second is a prohibition against misplaced attraction, as a regulation of the faculty of Desire, along with the suggestion that the whole world is of little worth. If the unjust judge were to take the whole world for making a wrong judgment, he would have sold the judgment of Allah for a `little price', since what is transitory is of little value however much it may appear to be. The bribery that has been forbidden is not only of the pecuniary kind. On the contrary, it also includes advantages and benefits and may be a particular act performed by the briber, or words of praise, or a display of his respect and reverence for the judge. All these are forbidden, for the term `bribe' is applicable to them and the, rule concerning it applies to them.(1) In the `Rules of Conduct for Litigants' we will mention that giving and receiving bribe are both unlawful.

It is apparent from what has been previously mentioned that it is necessary for the judge to be on guard against becoming an advocate for the treacherous person, whether it is by misplaced inclination or repulsion. Almighty Allah, the Exalted, says: Surely We have sent down to thee the Book with the truth, so that thou mayest judge between the people by that Almighty Allah has shown thee. So be not an advocate for the traitors. (2)

The judge has been forbidden to be an advocate for the traitor and defend him, for the traitor only deceives himself, and so is not liked by Allah, the Exalted. The judge must be on his guard against inclin­ing towards him, defending him, driving away the oppressed person, and standing by the oppressor.

Conclusion

The aim of the judiciary is that the judge should possess the greatest impartiality, emanating through wisdom in the intellectual faculty, through generosity and integrity in the faculty of Desire, and through courage in the faculty of Anger, so that the judiciary becomes free from the pollution of injustice, vanity, and falsehood, and achieves un­equalled good. One of the rules of judiciary is that the judge should not hasten with judgment before complete investigation and questioning of the litigants. This is indicated by the statement of Almighty Allah, the Exalted: Behold, this my brother has ninety-nine ewes, and I have one ewe. Yet he says, "Give her into my charge"; and he has overcome me in the argument.' Said he, `Assuredly he has wronged thee in asking for thy ewe in addition to his sheep; and indeed many partners do injury one against the other, save those who believe, and do deeds of righteousness-and how few they are!' And David thought that We had only tried him; therefore he sought for­giveness of his Lord, and he fell down, bowing, and he repented. (3)
This verse indicates that it is essential to abandon haste in identifying the culprit and the offence, even though it is in compliance with the presumption of the soundness of the case. There is nothing in the verse to indicate criticism in relation to the conduct of the Prophet David, since this episode is narrated in the Surat Sad between two com­mendations of Dawud, peace be upon him. Before the above-mentioned verse, Almighty Allah, the Exalted, says: And We gave him wisdom and speech decisive.(4)
After the verses 23-24, Almighty Allah the Exalted says: David, behold, We have appointed thee a viceroy in the earth; therefore judge between men justly.(5)
Undoubtedly, a prophet whom Allah has given `wisdom and speech decisive' and whom He has made a viceroy in the earth, commanding him to judge between men justly, does not hasten in judgment before .decisively completing a proper investigation. Thus it is certain that what issued from Dawud, peace be upon him, was only mentioned as a presumption and a hypothesis, i.e. it is an injustice to presume the veracity of a hypothetical case. Therefore, the judge must abandon haste in such a decision as well, and must treat both the litigants equal­ly in looking at them and speaking to them. He should know that his tongue is between two flames of fire, and that his tongue is behind his heart; so if it is right for him he should speak, otherwise he should hold back. If the judge has not learned to conduct himself in accord­ance with the Divine norms, his judgment would have no significance, even if it were correct; since two matters have to be taker. Into account in adjudication; firstly, the actual good (al-husn al-fi'li), which is that the judgment should be in accordance with the truth; secondly, the efficient good (al-husn al-fa`ili), which is that the judgment should issue from a pure soul and a heart with certain faith, and without fear of anyone's reproach. `The judges are of four kinds, three of which belong in the fire and one in heaven.(6) This kind is the one who judges rightly and knows that it is right.

Continue in the next article: ( The Islamic System of Judiciary in the Qur'an 6 )

NOTES:

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1. Al-Tabataba'i, al-`Urwat al-wuthqa, p.3.

2. (4:105)

3. (38:23-24)

4. (38: 26)

5. (38:26)

6. Al-Wasa'il, Chapter 4, "The Qualities of a Judge."