In the previous section of the article titled “The Islamic System of Judiciary in the Qur’an”, we discussed about the rules of conduct for the litigants, we shall highlight the rules of conduct for the witness, The Rules of Conduct for Judgment Between the People of the Book and uncommon judicial ruling in this section.
The Rules of Conduct for the Witness
Judgment has a particular basis on which the judge relies when giving his judgment. If it is strong, then the ruling is correct and in keeping with the facts, not otherwise. Like the judge, the witness must be knowledgeable and just. The difference between the two is that the judge must have knowledge of the Divine law, while the witness must have knowledge of the matter that has been witnessed. He must comply with two points: firstly, he must have been present at the event in order to have witnessed it himself; secondly, he must be present in the court to report it (1) without alteration or evasion. He must not avoid, conceal, or alter testimony, because “the one who conceals it, his heart is sinful; and Almighty Allah has knowledge of the things you do”.(2) Allah, the Exalted, says: O believers, be you securers of justice, witnesses for Almighty Allah, even though it be against yourselves, or your parents and kinsmen, whether the man be rich or poor; Almighty Allah stands closer to you than either of the two. Then follow not desire, so as to swerve; for if you twist or turn, Almighty Allah is aware of the things you do. (3)
The conclusion of this noble verse is that no personal, communal or economic factor should interfere with the testimony, not even the love of oneself or of parents or kinsmen. Similarly, economic factors, such as prosperity or poverty, should not influence the mode of giving witness or abstention from it. That is because Allah, the Exalted, is aware of the actions of His servants and witnesses to them, whatever they may be. Whoever knows that protects himself against lapses and humiliation.
The verse also shows that kinship is no hindrance to the acceptance of the evidence of one of the relatives, even if it is the child’s against the father. The details concerning the verse can be found in the books on law.
The Rules of Conduct for Judgment Between the People of the Book
The two litigants may be Muslims, Jews or Christians, or of differing religions. If the two litigants are Muslims, the judge will rule between them only in accordance with Islam. If they are Jews or Christians, then the judge has the choice of ruling between them according to Islam or referring them to special courts of their religious communities so that they may be judged according to them. Allah, the Exalted, says:
If they come to thee, judge thou between them, or turn away from them; if thou turns away from them, they will hurt thee nothing; and if thou judges, judge justly between them; Almighty Allah loves the just. (4)
This noble verse expressly suggests the choice between the two alternatives, and it is not contradicted by the literal meaning (zahir) of another text stipulating judgment between them in accordance with Islam, because, firstly, an express text (nass) enjoys precedence over the literal meaning (zahir) and also because the choice between the two alternatives is also in accordance with Islam. Thus there is no room for thinking that this verse is abrogated by the following one: So judge between them according to what Almighty Allah has sent down, and do not follow their caprices. (5)
There is no contradiction between the nass allowing choice and the zahir specifying judgment in accordance with Islam. In addition, the choice has also been revealed by Allah, the Exalted. As regards the elaboration of the opinion which says that when the two litigants are from different religious communities, it is permissible for a Muslim judge to rule according to their laws, Imam `Ali, peace be upon him, “Were the cushion folded for me, I would judge between the people of the Injil in accordance with their Injil…”. Details on the topic can be found in legal works.
Some of our Imami legists (6) have supported the necessity of ruling between the two parties in accordance with Islam since referring them back to one of the religious communities would cause fitnah. Our teacher, al-‘Imam al-Khumayni, has ruled that if a dhimmi man committed adultery with a dhimmi woman, or if one dhimmi committed sodomy with another, the Islamic punishment (hadd) should be enforced. (7)
Uncommon Judicial Rulings
1. It has been stipulated in fiqh that adjudication has certain criteria which the judge may not violate. These include: evidence or oath, the oath given on weak and inconclusive evidence (qasamah in cases of lawth), the knowledge of the judge, or admission, where the judge u not able to give a positive or negative judgment violating them.
He may resort to drawing lots only when there is a conflict of rights, not in order to determine and reveal the ruling but to make a division and in cases which are similarly doubtful. The matter is elaborated in legal works. It has been pointed out that drawing lots has a basis in the Noble Qur’an, and to mention it here is not without benefit. Almighty Allah, the Exalted, has said: For thou wast not with them when they were casting quills which of them should have charge of Mary; thou wart not with them, when they were disputing. (8)
…And cast lots, and he was of the rebutted. (9)
The last verse means that Jonah was a loser in the casting of lots when his arrow appeared, and he was thrown into the sea and swallowed by the whale. That has no connection with adjudication because of the general character of the act of drawing lots. Nevertheless, it has some relation to it and so must be indicated here.
2. The difference between the rulings of Dawud (PBUH) and Sulayman (PBUH) on tillage-“when the sheep of the people strayed there” (10) may come to one’s mind Sometimes their difference is attributed to ijtihad, and at other times to the revelation to Sulayman that abrogated the ruling of Dawud.
I say: With regard to Divine judgment, there is no scope for a prophet to perform ijtihad according to personal judgment and reflection. In addition, Almighty Allah, the Exalted, has said: And We made Sulayman to understand it. (11)
This suggests that the `understanding’ was the result of Divine inspiration. Similarly, that which was given to Dawud, peace be upon him, was from Almighty Allah, the Mighty and Sublime, since Almighty Allah gave him “wisdom and speech decisive (fasl al-khitab). (12) It is said that by fasl al khitab is meant the rule that evidence lies with the claimant and oath upon the denier. As for the abrogation, it has perhaps not been established because of the possibility of both the judgments being correct though Sulayman’s ruling was more beneficial and proper with regard to the litigants.
NOTES:
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1. Qur’an 2:282.
2. Qur’an 2:28.
3. Qur’an 4:135.
4. Qur’an 5:42.
5. Qur’an 5:48.
6. Al-Suyuti, Kanz al-`irfan, ii, 378.
7. Tahrir al-Wasi’lah, ii, 464, 470, 506, 507
8. Qur’an 3:44.
9. Qur’an 37:141.
10. Qur’an 21:78.
11. Qur’an 21:79.
12. Qur’an 38:20.
