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| | Justice in Islamic legislation |  |
| | | كاتب الموضوع | رسالة |
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أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52644
العمر : 72
| | موضوع: Justice in Islamic legislation الخميس 12 أغسطس 2021, 1:25 am | |
| Justice in Islamic legislation
Man’s stewardship of earth is a matter that proceeds from God the Almighty; man is entrusted with the protection and guardianship of the earth as well as with its administration and the rectification of any evil that may occur. Of this duty, God the Almighty says, “O David! We did indeed make thee a vicegerent on earth: so judge thou between man in truth (and justice): nor follow thou the lust (of thy heart), for it will mislead thee from the path” [38, 26]. God’s words to David evince the importance of judging [between people] in truth and with justice. Truth is synonymous with justice and antonymous with corruption. The basic principle in the kingly power conferred upon David, is the administration of justice. It is for this reason that God the Almighty followed his words to David with “nor follow thou the lust (of thy heart)”.
-The administration of justice and equity are the path to Divine love and propinquity. God therefore told Prophet Muhammad (peace and blessings be upon him), “If thou judge, judge in equity between them. For Allah loveth those who judge in equity” [5, 42]. Man’s sovereignty on earth is one of deputation and not of absolute ownership and mastery. His duty as protector and guardian of the earth is the ultimate purport of the stewardship established by Islam. Man is therefore responsible for the trust he bears and for the good deeds he does on earth as well as his abuse and corruption.
God the Almighty says, “He Who created death and life, that He may try which of you is best in deed” [67, 2]. Elsewhere in the same Qur`anic chapter, God the Almighty reminds man that the earth was made tractable for him so that he may benefit from its good; it is therefore incumbent upon him to strive to achieve this purpose, “It is He Who has made the earth manageable for you, so traverse ye through its tracts and enjoy of the sustenance which He furnishes; but unto Him is the resurrection” [67, 15].
God’s law which He revealed upon Muhammad (peace and blessings be upon him) revolves in the sphere of indications of truth and rational evidences. Any path that leads to justice is deemed to be in harmony with the law of God and His religion and all means that manifest the cause of justice must be implemented.
Islamic law seeks to achieve certain purposes. Consequently, justice and equality between people are among the most important principles upon which Islamic law is predicated. The goal of all legislations is to set examples for man to follow. By his nature, man is inclined to see his honored position on earth as an expression of his stewardship to God. The establishment of justice and administration of the principle of equality between people serve to refine man; they give him a measure of freedom, confer upon him dignity, grant him happiness, and serve his interests. All of this is an expression of God’s will and purpose with regard to His creation.
God’s primary purpose of sending messengers and revealing His scriptures is the establishment of justice and equity. He therefore says, “We sent aforetime Our messengers with clear signs and sent down with them the Book and the balance (of right and wrong), that men may stand forth in justice” [57, 25] and “Allah doth command you to render back your trusts to those to whom they are due; and when ye judge between people that ye judge with justice: Verily how excellent is the teaching which He giveth you! For Allah is He Who hearethand seeth all things” [4, 58].
The approach of Islamic law to the establishment of justice between people is achieved by means of a system, the top priority of which is the honor and dignity of man. The Divinely conferred honor is comprehensive; it embraces all man without distinction—the believer and unbeliever, white and black, young and old, males and females. No one is entitled to contend with or strip man of this Divinely awarded gift. “We have honored the sons of Adam” [17, 70], God says. The equality in justice and the obligation of rights and duties is shared by all mankind.
God the Almighty says, “O ye who believe! Stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear Allah. For Allah is well-acquainted with all that ye do” [5, 8]. In his exegesis of this verse, Ibn Kathir said that God instructs man not to allow the hatred of others towards him preclude the dispensation of justice. Justice must be met for all, friend or foe. This is why God the Almighty says, “Be just: that is next to piety.” Although the verse states that justice is ‘nearer’ to piety, there is no other course of action to take and so, according to Ibn Kathir, piety is equated with justice.
Abu Al-Sa’ud is of the view that the prohibition promulgated by this verse is in fact a prohibition against transgression expressed in the most eloquent and emphatic manner. A prohibition against the causes of a thing and its preliminaries is a logical prohibition and a nullification of its causes. A prohibition may be declared against the effect of a cause when I fact it is meant as a prohibition against the cause itself.
Equitable justice is a deeply enshrined principle in Islam. A persons’ faith must not be grounds for denying him justice and any punishment meted out to a non-Muslim, whether it is the death penalty or imprisonment, must be proportionate to his crime. It is impermissible to retaliate in kind even if they [non-Muslims] kill our women and children (Tafsir Ibn Sa’ud, 2/5).
Imam Al-Shafi’i argued that it is impermissible to withhold a right due to a non-Muslim from a hostile land who has entered Muslim territory under safe conduct simply because his ruler withheld the right of a Muslim in his own land. Since he did not commit the injustice, the non-Muslim is not made to bear the brunt of another’s wrongdoing (Al-Umm, 4/139).
Justice in Islam is based on two matters:
The first comprises obligatory legislations which establish the principle of justice in the society and protect it while the second comprises moral obligations which encourage individuals to seek justice. Not only did the Legislator impose laws to achieve the necessary interests of man, but He laid down laws for the purpose of facilitating and alleviating hardship. He commanded man to espouse noble morals and ethics which effectuate beauty, refinement, and honor.
Equality and Islamic Law
Islamic law considers the human rights that are due to each and every individual by virtue of his human nature obligatory necessities. Food, clothes, accommodations, security, intellectual freedom, freedom of religion and expression, science, education, participation in the formulation of the society’s public system, monitoring and taking those in authority to account, fighting weak and oppressive regimes and fighting immorality and corruption are all societal exigencies that must be granted to the inhabitants of a state. In turn, individuals must demand these rights and are deemed blameworthy if they relinquish or neglect to achieve them for each and every person.
In the monotheistic creed of Islam, all are servants of One God and share the same status before Him by virtue of their common origin. This is expressed in the Qur`an by the words, “O mankind! Fear your Guardian Lord, Who created you from a single person, created out of it, his mate, and from then twain scattered (like seeds) countless men and women [4, 1].
In his Tafsir (3/565) Al-Tabari explained that God describes Himself as the sole Creator of all man from a single person. By this, He reminds His servants of their common origin since they are all the descendants of one man and one woman. The rights of some upon others is a duty that is tantamount to the right of a person upon his brother. The protection that is considered a right upon one to another due to distant kinship and filiation is as obligatory as the protection that is considered a right upon one to another due to close kinship and filiation. Man is thus instructed to observe justice at all times and the weak shall enjoy their right to protection from the strong in conformity to God’s will.
Belief in God the Creator and ritual worship are rights due to all humans. No one has authority over another concerning his faith and a person’s relationship with God is unmediated. The words in verse 186 of the chapter of the Cow, “When My servants ask thee concerning Me, I am indeed close (to them): I respond to the prayer of every suppliant when he calleth on Me” attest to the open channel between God the Almighty and His servants in every age and place. Equality then from the Islamic perspective does not mean eliminating differences which is one of the universal norms of God in His creation; it is a fact and cannot be annihilated or ignored.
Equality means justice and justice can only exist in an environment that is free of any form of discrimination on the basis of physical characteristics which a person has no hand in. Based on this, it is obligatory to implement the concepts of human equality based on respecting human differences and without encroaching upon the identity of another or attempting to distort or eliminate it.
We must also understand differences as a human right deserving of respect. Any attempt to force humankind by the logic of strength under a single group simply because we believe in its superiority is deemed a blatant violation of human rights. The Qur`anic verse explains God’s will when He says, “If they Lord had so willed, he could have made mankind one people: but they will not cease to differ except those on whom they Lord hath bestowed His mercy: And for this did He create them” [11, 118-9].
Differences among humankind are therefore a Divine will. About man’s physical characteristics, God says, “And among His signs is the creation of the Heavens and the earth, and the variations in your languages and your colors” [30, 22] and about his way [in all aspects of life], He says, “To each among you have We prescribed a law and an open way. If Allah had so willed, He would have made you a single People” [5, 48]. God’s will in the diversity in man’s way and particulars of law, all of which proceed from a single purpose, is securing man’s welfare, establishing justice, and administrating the earth, “To each is a goal to which Allah turns him; then strive together (as in a race) towards all that is good” [2, 148].
Equality and justice in the traditions of Prophet Muhammad (peace and blessings be upon him)
- During his Farewell sermon, the Prophet (peace and blessings be upon him) addressed the people saying, “O people! Your Lord is One and your father is one. An Arab has no superiority over a non-Arab nor does a non-Arab have any superiority over an Arab. [Also] a red has no superiority over a black nor does a black have any superiority over a red except by piety. The noblest of you in God’s sight is the most god-fearing. Have I delivered the message?” [Recorded by Al-Baihaqi in Shu’ab Al-Iman 4/289].
- The Prophet (peace and blessings be upon him) said, “Verily, those who came before you were destroyed because when a noble person from among them was found guilty of theft, they would pass no sentence on him. By God! If Fatima, the daughter of Muhammad, commits theft, I would cut off her hand” [recorded by Bukhari 4/175 and by Muslim 3/1315].
- The Prophet (peace and blessings be upon him) said, “No community shall be blessed/prosper if its weak do not take their rights from its strong without difficulty or hardship” [Al-Haithami in Mujma’ Al-Zawa`id, 5/375].
The doctrine, law, and acts of worship introduced by Islam transformed the Arabs whose society was rife with discrimination on grounds of physical characteristics and illogical reasons into a people governed by the spirit of love and fraternity. So much so that they even accepted that Bilal, the Ethiopian of a black complexion, climb the Ka’ba after the conquest of Mecca to make the call for prayer, attesting to the values of equality and human dignity as enshrined in Islam.
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| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52644
العمر : 72
| | موضوع: رد: Justice in Islamic legislation الخميس 12 أغسطس 2021, 1:28 am | |
| The distinguishing features of Islamic law
Unlike other legislations, Islamic law is comprehensive. It takes into consideration all the small and large aspects of man’s life and put them in a set of clear and constant rules, principles, and theories. Islamic law does not neglect any of man’s actions, whatever their significance, without giving explicit evidence from the Qur`an and Prophetic traditions or giving clear indications alerting him to the permissibility or prohibition of acts. God the Almighty says, “We have sent down to thee the Book explaining all things” [16, 89].
A further distinguishing feature of Islamic law is its immutability and stability. This is of utmost importance for the dispensation of justice not only on the individual and group levels but also on the temporal and spatial levels. The texts of Islamic law do not accept time-induced changes or alterations while its flexibility admits ijtihad and renewal with respect to its comprehension and interpretation, thereby preserving its validity for every age and place.
One of the characteristics of the principles of Islamic legislation, are its flexibility, capaciousness, and consideration of the realities and conditions of the time. Islamic law therefore tackles unprecedented matters and problems in a just and definitive manner. The scholars of Islam recognized this dichotomous balance of flexibility and realism, and so did not cease in their ijtihad to understand the developments and changes that occur in people’s livelihoods, morals, and sciences.
Muslim scholars gave judges and rulers authority in matters of governance (siyasa shar’iyyah) and the affairs of their subjects to establish justice and remove oppression. Respect for the supremacy of law and restricting a ruler’s power in matters requiring ijtihad and issuance of rulings is an additional distinguishing feature of Islamic law. In another precedent for Islamic law, it was the first to restrict the power rulers exercised over their subjects and hold them accountable for any wrongs or mistakes.
The sovereignty of rulers in Islamic law is not absolute; they are considered members of the community who are chosen to lead it and consequently have certain rights and responsibilities. The power a ruler enjoys extends only to the extent that allows him to fulfill his obligations towards the community and meet his rights. In performing his duties and fulfilling his rights, he is bound by the texts and spirit of Islamic law in accordance to the words of God Who says, “Judge thou between them by what Allah hath revealed” [5, 49] and “Then We put thee on the (right) way of religion: so follow thou that (way), and follow not the desires of those who know not” [45, 18].
After the Prophet’s death, Muslims chose Abu Bakr As-Siddiq as their caliph and ruler. In his inaugural speech he said, “O people! I have been put in authority over you though I am not the best of you. So help me if I do right and correct me if I do wrong. Obey me as long as I obey God and His Messenger. But if I do not obey God and His Messenger, I have no right to your obedience.”
In Islamic law, it is not permissible for a government or ruler to favor a particular group at the expense of another. It must dispense justice to all; this is the task of those in authority and this is their duty established by the principles of governance. A ruler must administer justice without partiality or favoritism because it is the core requisite for administrating the earth and pillar governance.
It is only through justice that chaos and disturbances can be checked in a society to propagate security, tranquility, and order. The Prophet (peace and blessings be upon him) is reported to have said, “A person whose plea in favor of another precludes one of the penalties of God, opposes God and whoever knowingly argues in favor of an injustice will remain under God’s wrath until he desists [Abu Dawud].
Deference to the law is a duty upon subjects; God says, “O ye who believe! Obey Allah, and obey the Messenger, and those charges with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger” [4, 59]. However, this obedience extends only to what is right and is in consonance with religion and law.
The Prophet (peace and blessings be upon him) said, “A Muslim must hear and obey those vested with authority concerning what he likes and what he does not like unless he is commanded to do a wrong action. If he is commanded to commit a disobedience, he must not obey” [recorded by Bukhari and Muslim]. It was also reported that he said, “There is no obedience to anyone in disobeying God” [recorded by Al-Tabarani in Al-Mu’jam Al-Kabeer]. A disobedience to God can only be in matters which he has legislated i.e. laws and regulations.
It is not permissible for a ruler to circumvent or dismiss a law if it conflicts with an interest of his or his caprice. The interests of the people and their desires are often in conflict and a ruler’s task is to achieve the greatest benefit to the greatest number of people and prevent the greatest harms from reaching the greatest number of people. This is justice and these are the laws and legislations which Islam enjoins upon the people.
God ordains justice which is one of His beautiful names “Al-Hakam Al-‘Adl’ (The Judge, The Just). He loves everything that leads to justice between the people and everything that sows love and trust between them; this is ordained in His religion and legislation. He says, “Say: “My Lord hath commanded justice” [Al-A’raf, 29]. In a similar vein, the Prophet (peace and blessings be upon him) quoted God as saying, “O my servants! I have made oppression prohibited upon Myself and prohibited upon you so do not oppress one another” [recorded by Muslim].
Because the Muslim state does not differentiate between its residents, the law is applied to all equally. Muslims and non-Muslims, rich and poor, ruler and subjects are all equal before the law. Positive laws put the ruler and his subjects on different pars. While the people are subject to the law, the ruler is considered the source of the law and the supreme authority and therefore is not subject to an inferior authority.
In contrast, Islamic law does not give anyone special privileges or immunities from the application of the law—no distinction is made between a ruler and his subjects. Each and every person bears a criminal responsibility [for any crime they commit]. Ibn Qudama said, “Subjects may seek retaliation against their governors and state officials based on the general implication of verses and evidences and because the lives of believers are equal. We do not know of anyone who maintains differently” (Al-Mughny, 9/150).
The theory of punishment in Islamic legislation
Man must live as a society and it is imperative that this society be governed by a sovereign authority to regulate its affairs and establish justice between its members. This is declared in the words of God Who says, “Allah commands justice, the doing of good…” [16, 90]. God ordained that all mankind observe justice, even prophets so He says, “O David! We did indeed make thee a vicegerent on earth: so judge thou between man in truth (and justice): nor follow thou the lust (of thy heart), for it will mislead thee from the path” [38, 26] and “Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin” [4, 135].
The ultimate objective of every injunction in Islamic law is to secure the interests of the people. This body of legislations was only instituted to achieve these interests and is therefore a mercy to the people. And because crimes are different in their nature, it was necessary to establish an exact measuring gauge to mete out proportionate punishments as it was equally impermissible to leave the determination of punishments subject to human disposition.
In Islamic law, punishments are proportionate to the various categories of crime. No punishment exceeds or undermines the crime for which it was instituted. The Islamic penal code is exact and just and seeks to fight personal motives for each crime. The measure for the success or failure of a punishment is its ability to curtail crime in society without exhausting the human and material societal potential, disturbing the activity of production, undermining man’s dignity, or generating ill-will and hatred towards society.
The prescribed punishment in the Shari'ah is a mercy to both the offender and to the community in which he lives. It is a mercy to the community because it secures the safety and protection of property, honor, and lives. For the offender, it expiates for his crime and deters him from returning to crime.
Islam has based the administration of punishments on rules which determine facts and prevent those in authority from exploiting their discretion to punish their enemies and opponents. Therefore, Islam laid down maxims that regulate litigation and as a means to promote justice and spread safety.
These include:
• The norm in things is that of non-liability.
• The norm in things is that of permissibility i.e. a ruling cannot not be applied in the absence of a text.
• There can be no crime or punishment without a specific legal provision in the Shari’ah.
• Punishments are overruled by doubt.
• To err in forgiveness is better than to err in meting out punishment.
• A ruler is not entitled to grant a general or private pardon except in disciplinary punishment.
A penalty causes physical and moral harm to the offender. It is therefore unlawful for anyone to harm or inflict pain on another without right which is only established through decisive evidence; otherwise, it lacks the certainty on which rulings are based. It is because of this that doubts are disregarded by the judge, since they entail error as stated in the maxim ‘Penalties are overruled by doubts’.
Overruling penalties due to doubt may occur as a result of the judge's examination of the offender’s individual circumstances, or due to the existence of public societal circumstances which drove the offender to commit his crime. This is based on the legal maxim, "Necessities overrule prohibitions”.
Evidence from the Qur`an
God the Almighty says, "He hath explained to you in detail what is forbidden to you - except under compulsion of necessity" (6:119), and "But if one is forced by necessity, without willful disobedience, nor transgressing due limits,- then is he guiltless" (2:173).
Penalties in the Shari'ah take into account the capacities and abilities of people. God the Almighty says, "On no soul doth Allah Place a burden greater than it can bear. It gets every good that it earns, and it suffers every ill that it earns" (2:286), "So fear Allah as much as ye can" (64:16), and "Allah puts no burden on any person beyond what He has given him" (65:7).
It is due to the above that the commander of the believers, 'Umar Ibn Al-Khattab ruled against punishing a male servant who was accused of theft. He waived the penalty because the servant’s masters were known to starve those in their service to the point that if they had eaten carrion, it would have been permissible in their regard. Instead, ‘Umar fined the servant’s employees even though they were the victims of a theft.
In Islamic law penalties are only administered upon perpetrators. A collective punishment is not only far removed from justice but constitutes injustice and oppression. Justice and reason demand that no one be punished for the offense of another. The Prophet (peace and blessings be upon him) said, "No one is held blameworthy except the offender" [recorded by At-Tirmidhi and Ibn Majah]. God the Almighty says, "Every soul draws the meed of its acts on none but itself: no bearer of burdens can bear of burdens can bear the burden of another. Your goal in the end is towards Allah. He will tell you the truth of the things wherein ye disputed" (6:164).
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| | | | أحمد محمد لبن Ahmad.M.Lbn
مؤسس ومدير المنتدى
عدد المساهمات : 52644
العمر : 72
| | موضوع: رد: Justice in Islamic legislation الخميس 12 أغسطس 2021, 1:31 am | |
| The right to pardon
A victim is entitled to pardon the culprit before referring the matter to the courts. However, by resorting to the court, the culprit’s punishment becomes a social right, effectively preventing the victim from waiving his own right.
Evidence from the sunnah
- It was narrated on the authority of Safwan Ibn Umayyah that he said, “I was sleeping in the mosque on my cloak when a thief came and snatched it from under my head. I woke up and shouted after him. The man was seized and brought before the Messenger of God (peace and blessings be upon him) who ordered that his hand be cut off. I approached the Messenger (peace and blessings be upon him) and said, ‘Will his hand be severed for only thirty dirhams? I will sell him the cloak for deferred payment.’ He replied, ‘Why did you not do so before bringing him to me” [recorded by Abu Dawud].
The permissibility to pardon the offender before reporting him enables him to amend his error, regret his conduct, and repent from his sin.
- The Messenger of God (peace and blessings be upon him) said, “Forgive offences [deserving prescribed penalties] among yourselves for whatever of them reaches me, must be carried out” [recorded by Abu Dawud].
- The Messenger of God (peace and blessings be upon him) said, “Whoever is afflicted by murder or injury, is to choose between one of three: retribution, blood money, or pardon [the offender]. If he chooses a fourth [option], prevent him. And he who kills the offender after taking his right shall be in the Hellfire, abiding there for eternity” [recorded by Ahmed in his Musnad].
- The Messenger of God (peace and blessings be upon him) said, "Whoever covers the faults of a believer is like one who has brought to life a female infant who was buried alive" [recorded by Ahmed in his Musnad].
- The Messenger of God (peace and blessings e upon him) said, "He who conceals the fault of his Muslim brother, God will conceal his fault on the Day of Judgment. And he who discloses the faults of his Muslim brother, God will disclose his fault even if he is in his own house" [recorded by Ibn Majah].
- The Companion Zayd Ibn Aslam said, “A man confessed to fornication during the lifetime of the Messenger of God (peace and blessings be upon him). The Messenger of God (peace and blessings be upon him) called for a whip and was brought a broken one. He said, "Better than this," and so he was brought a new whip that had not been used before. He said, "Less than this," and so he was brought a whip that had been used and was flexible.
The Messenger of God (peace and blessings be upon him) ordered that the man be flogged with it. He then said, "O People! The time has come for you to observe the limits of God. Whoever is inflicted with these ugly things should conceal them with the veil of God. Whoever reveals to us his wrong actions, we will act towards him according to the Book of God" [recorded by Malik in his Muwatta`].
The Shari'ah entitles the victim or his guardian, and not the ruler, to waive the right to retaliate or take blood money before and after referring the matter to the courts. This is mentioned in Qur'an as per the words of God the Almighty, "O ye who believe! the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman.
But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty" (2:178). As for the ruler, he is only permitted to grant his pardon for crimes that necessitate disciplinary punishments as the punishment is subject to his discretion. A man once came to the Prophet (peace and blessings be upon him) and told him that he had kissed a woman.
The Prophet (peace and blessings be upon him) told him, "Perform ablution and pray." The verse “For those things, that are good remove those that are evil” was then revealed upon the Prophet, thereupon the man asked, “Is this verse revealed in my regard?” The Prophet (peace and blessings be upon him) replied, "It is revealed for those of my community who act upon it" [recorded by Bukhari]. Though the man erred and confessed to his crime, the Prophet (peace and blessings be upon him) pardoned him. However, the Prophet (peace and blessings be upon him) commanded him to do a good deed by which he will draw closer to God, express his repentance, and admit his sin.
The judge and the judiciary in Islamic legislation
A judge is the person tasked with achieving the supremacy of law and legislations which govern the lives of people. He is granted the wisdom to adjudicate and teach the people.
The administration of justice is the objective and principle underlying the entire judiciary system. God the Almighty says, "Now then, for that (reason), call (them to the Faith), and stand steadfast as thou art commanded, nor follow thou their vain desires; but say: "I believe in the Book which Allah has sent down; and I am commanded to judge justly between you. Allah is our Lord and your Lord: for us (is the responsibility for) our deeds, and for you for your deeds. There is no contention between us and you. Allah will bring us together, and to Him is (our) Final Goal" (42:15).
Among the most important aspects of justice in adjudication is avoiding personal inclinations of love or hatred. God the Almighty says, "O ye who believe! stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear Allah. For Allah is well-acquainted with all that ye do" (5:8).
A judge's love or hatred for the accused must not affect his decision. If a culprit’s guilt has not been proven, the judge's hatred for him does not establish or refute the crime. Otherwise, a judge would base his decisions on personal inclinations with injustice, contradicting the commands of God and our Prophet (peace and blessing be upon him).
The judge is the protector of the rights of both the accused and the victim alike; it is better for him to err on the side of pardon than on the side punishment. The Messenger of God (peace and blessings be upon him) said, “Ward off punishments as much as you can. If you find any way out for a Muslim, then set him free. If the imam makes a mistake in granting forgiveness, this is better for him than committing a mistake in imposing a punishment.” In his book Adab Al-Deen wa Ad-Dunya (p.182), Imam Al-Mawardi said, "A country's welfare is not established except by six [matters]: a followed religion, a strong ruler, comprehensive justice, public security, permanent prosperity, and ample hope."
Throughout history, judicial integrity in Islam was one of the means for calling people to the religion of God. Many people who lived in Muslim societies and enjoyed justice and equality [under Muslim rule], embraced Islam due to justice they saw in the laws of Islam and the integrity of Muslim rulers.
Litigation law established by the Prophet (peace and blessings be upon him)
A- The need for strong proof to establish the truthfulness of the claimant
The Prophet (peace and blessings be upon him) said, “If people were given what they lay claim to, they would take the blood and property of others. But the onus of the proof is on the claimant and the taking of an oath is upon the one who denies the allegation” [Recorded by Muslim].
B- Equality between opponents
When the Prophet (peace and blessings be upon him) sent Ali Ibn Abu Talib to Yemen as a judge, he gave him the following advice, "If two persons ask you to judge between them, judge not in favor of the first until you listen to the other, for in this way you would be better able to give an accurate judgment" [recorded by At-Tirmidhi]. The Messenger of God (peace and blessings be upon him) also said, "He who is inflicted with judging between people, let him treat the litigants equally in the way he looks at them, addresses them, and sits before them." In yet another narration, he said, "A judge must not raise his voice over one of the litigants except if he does the same with the other" [recorded by Ad-Darqutni in his Sunan and by Al-Bayhaqi].
C- The decision a judge issues to the people should be the same as the one he issues to himself and to his relatives
God the Almighty says, "O ye who believe! stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well- acquainted with all that ye do" (4: 135).
The Prophet (peace and blessings be upon him) said, "Do you know who will be the first to occupy a place under the shade of God on the Day of Resurrection?” The people replied, “God and His Messenger know best.” The Prophet (peace and blessings be upon him) said, "Those who when given what is right accept it; when asked for something, give freely and those who judge in favor of others as they do for themselves" [recorded by Ahmed in his Musnad].
D- Appointing the trustworthy and knowledgeable to decide on the rights of people and administer justice among them
God the Almighty says, "Truly the best of men for thee to employ is the (man) who is strong and trusty" (28:26) and "(Joseph) said: "Set me over the store-houses of the land: I will indeed guard them, as one that knows (their importance)" (12:55). The Prophet (peace and blessings be upon him) said, "Whoever appoints a person over Muslims knowing that there is among them another who is better and more acquainted with the Qur`an and the sunnah of His Prophet, has betrayed God, His Messenger, and all Muslims" [recorded by Bayhaqi].
The Christian delegation of Najran asked the Prophet (peace and blessings be upon him) to send with them none but a trustworthy person whereupon he replied, "I would definitely send with you a trustworthy man, a man of trust in the true sense of the word." He then said, "O Abu 'Ubaydah Ibn Al-Jarrah! Stand up." When he stood up, the Messenger of God (peace and blessings be upon him) said, "This is the trustworthy person of this community" [recorded by Bukhari].
e- A judge or a ruler is prohibited to accept gifts or bribes from opponents
The Messenger of God (peace and blessings be upon him) prohibited his governors and judges from taking anything as gifts or bribes from the people. He said, "What do you say of a state official whom I sent [on a mission] and he comes back and says, ‘This is for you and this has been presented to me as a gift?!’ Why did he not he remain in his father’s or mother’s house to see whether or not he would be presented with these?! No one of you will take anything of this except he will be made to carry it on the Day of Judgment, whether it is a growling camel, a bellowing cow, or a bleating goat" [recorded by Bukhari and Muslim].
F- The supremacy of law and determining the methodology for exercising ijtihad in understanding and applying the law
The Messenger of God (peace and blessings be upon him) specified the sound methodology that his governors and officials must follow in administering justice and the law and in judging between the people. When the Prophet (peace and blessings be upon him) dispatched Mu'adh to Yemen, he advised him with the following words, ‘How will you proceed when you are asked to render justice?’ He answered, ‘I will refer to the Book of God.’
The Prophet (peace and blessings be upon him) then asked him, ‘What will you do if you do not find the decree you are looking for there?’ Mu’adh answered, ‘I will refer to the sunnah of the Messenger of God.’ The Prophet (peace and blessings be upon him) asked him, ‘But what if you do not find anything in the sunnah of the Messenger of God, peace and blessings be upon him, or in the Book of God?’ Mu’adh readily answered, ‘I will exercise ijtihad and I will not give up.’ Thereupon the Messenger of God tapped him on his chest and said, "Praise be to God Who guided the messenger of God's Messenger to that which pleases him" [recorded by Abu Dawud].
In Islam, judicial rulings are derived from the Book of God and the sunnah of His Messenger (peace and blessings be upon him). Both are considered the just law and perfect and sound constitution that should be followed with belief and by word and deed. God the Almighty says, "Whatever it be wherein ye differ, the decision thereof is with Allah" (42:10) and " If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last Day" (4:59).
After the Qur'an and sunnah, it is obligatory to follow the consensus of Muhammad’s community. The Prophet (peace and blessings be upon him) said, “Whatever Muslims deem to be good, is good in the sight of God and whatever they deem evil, is evil in the sight of God" [recorded by Ahmed]. He (peace and blessings be upon him) also said, "I prayed to God the Almighty that my community never agree on a misguidance and He answered my prayer" [recorded by Ahmed].
God the Almighty says, "Thus, have We made of you an Ummat justly balanced, that ye might be witnesses over the nations" (2:143). The consensus of Muslims is followed by analogy [qiyas], personal reasoning [ijtihad], and consideration of public interest [maslaha mursalah] which the Shari’ah approved and stipulated.
g- A judge is rewarded in this world and in the Hereafter for his efforts in establishing justice
The Prophet (peace and blessings be upon him) exhorted judges to tax themselves to achieve justice and secure the interests of the people in consonance with the noble Shari'ah. He (peace blessings be upon him) said, "A judge who arrives at the correct ruling earns a double reward, and a judge who errs earns one reward." A judge is a human being and is not infallible to mistakes. However, he is rewarded for his efforts and keenness to achieve justice.
The justice of Muhammad, the Messenger of God (peace and blessings be upon him)
Abu Hurairah narrated that a man came to the Prophet (peace and blessings be upon him) and demanded his debts from him in such a harsh manner that the companions resolved to take action against him. But the Prophet (peace and blessings be upon him) said, "Leave him, no doubt, he (the creditor) has the right to claim his right." Then he said, "Buy a camel and give it to him." They said, "The camel that is available is older than the camel he demands.
The Prophet (peace and blessings be upon him) said, "Buy it and give it to him, for the best among you are those who repay their debts handsomely" [recorded by Bukhari]. Al-FadlIbn 'Abbas narrated, “I entered upon the Prophet (peace and blessings be upon him) when he was in his [last] sickness. He leaned on me until we reached the mosque where he addressed the people and said, "O people! I am but human like you. If I encroached upon anyone's honor, hair, skin or property, here is the honor of Muhammad and his hair, skin, and property, so let no one who was wronged but take his revenge [from me].
No one of you should say, ‘I am afraid to incur the rancor and hostility of Muhammad, they are not in my nature or manners." The next day, a man came forward and said, “O Messenger of God! Do you remember the day when a needy person came up to you and asked for assistance and you asked, who among us had something to loan you? I lent you three dirhams.” The Prophet (peace and blessings be upon him) said, “O Fadl! Pay them back to him." Al-Fadl said, “I gave them to him at once" [recorded by At-Tirmidhi].
Source:
Dar-aliftaa-almasriah. |
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