Aslam

Praise be to Allah.Firstly:

The position of judge is a

noble position, which brings great virtue for the one who is able to

undertake that role. The Prophets (peace be upon them), some of the senior

Sahaabah (may Allaah be pleased with them) and some of the prominent

Tabi’een and others who came after them took on this role. By judging justly

one is enjoining what is good and forbidding what is evil, and supporting

those who have been wronged.

Muhammad al-Khaadimi (may

Allaah have mercy on him) said:

Knowledge of judicial

matters is one of the noblest and most sublime branches of knowledge,

because it is a high position and prophetic role. Through it blood may be

protected or shed; it may determine which marriages are valid and invalid;

it may confirm ownership or loss of wealth; and it may show which dealings

are permissible or forbidden, disliked or recommended. The evidence that

knowledge of judicial matters is not like other (branches of knowledge) is

the verse (interpretation of the meaning): “And (remember) Dawood (David)

and Sulaymaan (Solomon), when they gave judgement in the case of the field…”

[al-Anbiya’ 21:78]. For that reason the Messengers were sent and on the

foundation of justice the heavens and the earth are established. The Prophet

(peace and blessings of Allaah be upon him) described it as one of the

blessings for which envy (hasad) is permitted, as he said: “There should be

no envy except in two cases: a man to whom Allaah has given wealth and

granted him the authority to spend it in a rightful manner and a man to whom

Allaah has given wisdom and he judges and acts on the basis of it.” And it

was narrated from Ibn Mas’ood (may Allaah be pleased with him): “If I were

to judge for one day, that would be dearer to me than worshipping for

seventy years.” Hence judging justly between people is one of the best of

righteous deeds that brings the highest status in the Hereafter. Allaah says

(interpretation of the meaning): “And if you judge, judge with justice

between them. Verily, Allaah loves those who act justly” [al-Maa’idah 5:42].

And what can be better than the love of Allaah?

Bareeqah Mahmoodiyyah fi

Sharh Tareeqah Muhammadiyyah wa Sharee’ah Nabawiyyah

(4/2,3).

Ibn Qudaamah (may Allaah be

pleased with him) said:

There is a great deal of

virtue in it for the one who is able to do it properly, hence Allaah has

decreed reward for it even if one errs, and has forgiven him for passing a

wrong judgement. It is also enjoining what is good, supporting the one who

is wronged, giving rights to those who are entitled to them, deterring the

wrongdoer from doing wrong, reconciling between people, settling disputes

between them, and these are among the best means of drawing close to Allaah.

Hence the Prophet

(peace and blessings of Allaah be upon him) and the other Prophets before

him assumed the position of judge and they judged their nations.

The Prophet (peace and

blessings of Allaah be upon him) sent ‘Ali to Yemen as a judge, and he sent

Mu’aadh as a judge.

It was narrated from Ibn

Mas’ood that he said: To sit between two people as a judge is dearer to me

than worshipping for seventy years.

Al-Mughni

(11/376).

In al-Mawsoo’ah

al-Fiqhiyyah (33/289) it says:

Because of its high status

and great virtue, Allaah has decreed reward for it even if one errs, and has

forgiven him for passing a wrong judgement. The Messenger of Allaah

(peace and blessings of Allaah be upon him) said: “If the judge rules and

strives his utmost to work it out and gets it right, he will have two

rewards, and if he rules and strives his utmost to work it out and gets it

wrong, he will have one reward.” (Agreed upon) He is rewarded for his

ijtihaad and efforts, not for his mistake. End quote.

Secondly:

Taking up a position as a

judge may be obligatory, or it may be permissible, or it may be haraam. It

is haraam for the one who takes up such a position when he is ignorant of

the rulings of sharee’ah. It is permissible for the one who can judge well

but there are others who can also do it. And it is obligatory for the one

who can judge well when there is no one else who can judge between people.

Ibn Qudaamah (may Allaah

have mercy on him) said:

People fall into three

categories with regard to judging:

1.The one for whom it is not

permissible to get involved with it. He is the one who is not qualified for

it and does not fulfil all its conditions. It was narrated that the Prophet

(peace and blessings of Allaah be upon him) said: “Judges are of three

types,” and he mentioned among them a man who judges between people on the

basis of ignorance, and he will be in Hell. And because the one who is not

qualified for it cannot be just, so he will take rights from the one who is

entitled to them and give them to someone else.

2.The one for whom it is

permissible, but not obligatory. This is the one who is of good character

and is able to engage in ijtihaad, but there are others who are like him. So

he may take up a position as a judge based on his situation and suitability

for the post, but it is not obligatory for him, because he is not the only

one who can do it. According to one view of Ahmad, it is not recommended for

him to enter into it, because of the dangers and risks involved, whereas

there is safety in not doing it, and because of the reports which speak

sternly about it, and because the way of the salaf was to avoid it. ‘Uthmaan

(may Allaah be pleased with him) wanted to appoint Ibn ‘Umar as a judge but

he refused. Abu ‘Abd-Allaah ibn Haamid said: If a man is unknown and people

do not refer to him concerning the rulings of sharee’ah, and he is not

known, then it is better for him to accept this post so that the people may

refer to him concerning the rules of sharee’ah and the truth may be

established by means of his rulings and the Muslims may benefit from him.

But if he is famous among the people for his knowledge, and people refer to

him for knowledge and fatwas, then it is better for him to keep busy with

that, because of the benefit involved, and because it is also safe from

risks. Something similar was said by the companions of al-Shaafa’i. They

said: If he is in need, and can earn a living from working as a judge, then

it is better for him to do that, and it may be better than other ways of

earning a living because it is an act of worship and obedience.

3.The one for whom it is

obligatory. This is the one who is suited to be a judge, and there is no one

apart from him. In this case it is an individual obligation, because it is a

communal obligation that no one else is able to undertake, so it becomes an

individual obligation for him, like washing and shrouding the deceased

[which becomes an individual obligation for the one who knows how to do it

when no one else knows that].

There is a report narrated from Ahmad which indicates that it is not an

individual obligation in this case. He was asked: Is the judge sinning (by

refraining from judging) if there is no one else (who can judge)? He said:

He is not sinning.

This may be understood according to its apparent meaning, that it is not

obligatory for him, because of the danger that it brings to him, so he does

not have to harm himself in order to benefit others. Hence Abu Qilaabah

refused it, although it was said to him, There is no one else. Or it may be

understood as referring to one who cannot do what is required because of

injustice on the part of the ruler and so on, because Ahmad said: The people

need a judge; we cannot let the people’s rights be lost?

Al-Mughni

(11/376).

Some scholars stated that

the issue of working as a judge is subject to the five rulings and it may be

either prohibited, obligatory, recommended, disliked or permissibley.

See: Mu’een al-Hukkaam

fima yataraddadu bayna al-Khasmayni min al-Ahkaam by Shaykh ‘Ala al-Deen

al-Taraabulsi (may Allaah have mercy on him) (p. 10).

Thirdly:

Some of the imams warned

against being appointed as a judge and warned of the danger of this post.

For example:

1-

It was narrated that ‘Ali

ibn Abi Taalib (may Allaah have mercy on him) said: If the people knew what

is involved in judging they would not judge concerning the price of a piece

of camel dung. But the people need judges and rulers, whether they are

righteous or immoral.

Akhbaar al-Qudaah

by Abu Bakr al-Dabbi who is known as al-Wakee’ (p. 21).

2-

It was narrated that

Mu’alla ibn Rawbah said: Raja’ ibn Haywah said to me: Today the ruler

appointed ‘Abd-Allaah ibn Mawhab as a judge. If I had a choice between being

carried to my grave or being appointed to that to which Ibn Mawhab has been

appointed, I would (choose to) be carried to my grave. I said to him: The

people say that you nominated him. He said: They are speaking the truth,

because I was thinking about the people and not thinking about him.

Akhbaar al-Qudaah

(p. 23, 24).

3-

It was narrated that

Mak-hool said: To go forth and have my neck struck is dearer to me than

being appointed as a judge.

4-

It was narrated from Raafi’

that ‘Umar ibn Hubayrah summoned him to appoint him as a judge, and he said:

I would not like to be appointed as a judge, even if the pillars of this

mosque were turned into gold for me.

5-

al-Fudayl ibn ‘Iyaad said:

If a man is appointed as a judge, let him allocate one day for judging and

one day for weeping.

6-

It was narrated that Ibn

Shubrumah said: Do not dare to assume the position of judge until you dare

to be exposed to the sword.

Akhbaar al-Qudaah

(p. 24).

Fourthly:

Many of the imams sought to

avoid being appointed as judges, and some of them even accepted beatings and

imprisonment instead of being appointed, and some fled from their homelands

in order to avoid being appointed as judges. The reasons why these imams

avoided being appointed as judges may be summed up as follows:

1-

He (the imam) thought that

he was not qualified to be a judge. It is well known that acting as a judge

requires a great deal of patience, intelligence and astuteness, and the imam

who turned down an appointment as a judge may have thought that he did not

fulfil these conditions.

Shaykh ‘Ala al-Deen

al-Taraabulsi (may Allaah have mercy on him) said:

One of the imams said: The

sign of the pious is that they avoid this and flee from it. A number of

exemplary imams endured hardship in order to keep away from this and they

bore it with patience.

Look at the case of Abu

Haneefah (may Allaah have mercy on him) and how he refused it and bore the

hardship with patience until he was relieved of that, as did other imams.

Abu Qilaabah fled to Egypt

when he was asked to become a judge, where he was met by Ayyoob who tried to

encourage him to do it by saying: If you get it right you will attain a

great reward. Abu Qilaabah said to him: The one who is drowning in the sea,

how long can he swim?

These words of Abu Qilaabah

and other imams, which speak of warnings and fear, are the words of one who

acknowledges his own weakness and inability to fulfil the necessary

conditions. The same applies to one who thinks he is qualified to act as a

judge but other people do not think he is qualified for that.

One of the scholars said:

There is nothing good in a person who thinks that he is qualified for

something for which the people do not think he is qualified.

What is meant by the people

here is the scholars. It is obligatory for such a person to avoid being

appointed as a judge, and seeking to protect himself is essential.

Mu’een al-Hukkaam fima

yataraddadu bayna al-Khasmayni min al-Ahkaam by

Shaykh ‘Ala al-Deen al-Taraabulsi (may Allaah have mercy on him) (p. 9)

2-

He thought that it was not

obligatory or mustahabb for him. Indeed, a comment by Imam Ahmad may be

understood as meaning that it is not obligatory for him even if it becomes

unavoidable for him and there is no one else [who is qualified for it].

3-

There is the danger of

passing an incorrect judgement and the scholars fear being appointed as a

judge because of that.

Ibn Qudaamah (may Allaah

have mercy on him) said:

In acting as a judge there

is grave danger and a huge burden for the one who does not do it properly.

Hence the salaf (may Allaah have mercy on them) would refuse it

emphatically, fearing its dangers.

Al-Mughni

(11/376)

In al-Mawsoo’ah

al-Fiqhiyyah (33/289, 290) it says:

Many of the righteous salaf

avoided being appointed as judges and refused it emphatically, even if they

were harmed as a result, because they feared its grave danger, as is

indicated in many ahaadeeth, in which a stern warning is issued to the one

who is appointed as a judge and does not do the job properly, such as the

hadeeth, “Allaah is with the judge so long as he is not unjust, but once he

becomes unjust He forsakes him and the shaytaan stays with him” [narrated by

al-Tirmidhi and Ibn Majaah; classed as hasan by al-Albaani] and “Whoever is

appointed as a judge or is made a judge has been slaughtered without a

knife” [narrated by Abu Dawood, al-Tirmidhi and Ibn Majaah; classed as

saheeh by al-Albaani] and “Judges are of three types, two of whom will be in

Hell and one in Paradise: a man who judges unjustly and knowingly, who will

be in Hell; a judge who has no knowledge and destroys people’s rights, who

will be in Hell; and a judge who judges in accordance with the truth, who

will be in Paradise” [Narrated by al-Tirmidhi (3/604) and al-Haakim (904) from the hadeeth of Buraydah; this version was narrated by al-Tirmidhi and classed as saheeh by al-Haakim, and al-Dhahabi agreed with him.]. End quote.

4-

Not being able to put up

with the trials of judging.

Shaykh Abu’l-Hasan

al-Nabaahi (may Allaah have mercy on him) said:

Because of the trials

involved in being a judge, many virtuous people fled from it and avoided it

until they were no longer asked to do it, and others were imprisoned for

their refusal, such as Abu Haneefah, whose name was al-Nu’maan ibn Thaabit.

‘Umar ibn Hubayrah summoned him to become a judge, but he refused, so he

imprisoned him and had him beaten for several days, ten lashes every day,

but he persisted in refusing it, until he let him off.

Tareekh Qudaat

al-Andalus (p. 7)

5-

They were preoccupied with

things that were more important, such as travelling in pursuit of knowledge,

or teaching people.

Finally, although the four

imams refused to be appointed as judges – as was narrated from them – the

noble Prophets (peace be upon them) and the four Rightly-Guided Caliphs did

take on this task, but those who want to err on the side of caution may do

so.

In al-Mawsoo’ah

al-Fiqhiyyah (33/290) it says:

After the time of the

Prophet (peace and blessings of Allaah be upon him) the Rightly-Guided

Caliphs also acted as judges; they were the leaders of the Muslims, and they

judged between people on the basis of truth and their involvement in it is

indicative of the high status of this post and the great reward that may be

attained thereby, because they are example for the Muslims to follow, and

after them many prominent Muslims and senior Taabi’een also took on this

role.

The fact that some of the

scholars refused to become involved in it, despite the fact that they were

virtuous, qualified for the post and pious, may be understood as taking

extreme precautions in order to protect themselves and erring on the side of

caution. Perhaps they thought that they were lacking in some way or they

were afraid that it would distract them from acquiring more knowledge. End

quote.

And Allaah knows best.