بَابُ الْعَمَلِ فِي الْقَضَاءِ وَالْخَوْفِ مِنْهُThe Duty of Judging and the Fear of It

² Regarding the saying: No judge should rule between two people while he is angry: This means it is not befitting for a judge to rule while angry, as it prevents him from reasoning and reflecting. Likewise, in extreme heat, extreme cold, hunger, thirst, or illness, if he rules in these conditions, his ruling is valid but disliked. As stated in al-Marqah and al-Alamkiriyya.

¹ Regarding the saying: If a judge rules and strives but errs, he will have one reward: Al-Nawawi said: There is disagreement on whether every mujtahid is correct, or is the correct one the one who aligns with Allah’s ruling, while the other is mistaken? The principle according to al-Shafi‘i and his companions is the latter, as he is called mistaken, and if he were correct, he would not be called mistaken. This applies to one who errs in the text or strives in a matter where striving is not permissible. Those who hold the first view say: He is given a reward for being mistaken, and if he were not correct, he would not have a reward. This applies if he is qualified for striving. As for one not qualified to rule, it is not permissible for him to rule, and his ruling is not enforced, whether it aligns with the truth or not, as his correctness is coincidental, so he is sinful in all his rulings. Abu Hanifa’s view is that in matters not clarified in the texts of the Quran, Sunnah, or consensus, analogy is the only option, like one seeking the qibla; he is correct even if he errs. As stated in al-Marqah.

² Regarding the saying: The Messenger of Allah (ﷺ) sent me to Yemen as a judge, etc.: It is stated in al-Hidayah: The appointment of a judge is not valid unless the appointee meets the conditions of testimony and is qualified for striving. It is stated in al-Binaya: The correct view according to us is that this is a condition of priority, not validity. Some said it is a condition of validity, and al-Shafi‘i held this view. In Wajiz al-Shafi‘iyya: Judging requires specific qualities: being male, free, a mujtahid, sighted, and just. Thus, the judgment of a woman, blind person, child, immoral person, ignorant person, or follower is not permissible. Muhammad stated in al-Asl that a follower cannot be a judge, but al-Khasaf indicated its permissibility, as he said: A judge rules by his own striving if he has an opinion; if not, he asks a jurist and follows his ruling. The evidence that striving is not a condition of validity is what Abu Dawud, al-Tirmidhi, and Ibn Majah narrated from Ali (may Allah be pleased with him), who said: The Messenger of Allah (ﷺ) sent me to Yemen as a judge, and I said: O Messenger of Allah! You send me while I am young and have no knowledge of judging, [the hadith]. Al-Hakim narrated it in his Mustadrak and said: Its chain is authentic, and they did not narrate it. Ali was not among the mujtahids at that time.

¹ Regarding the saying: And a man who judges for people in ignorance is in the Fire: It is stated in al-Hidayah: Following an ignorant person is valid according to us, unlike al-Shafi‘i, who says: Judging requires the ability to do so, and there is no ability without knowledge. Our view is that he can judge by another’s fatwa, achieving the purpose of judging, which is delivering the right to its owner. In al-Alamkiriyya: Even if an ignorant person follows and judges by another’s fatwa, it is permissible. As stated in al-Multaqat. However, an ignorant person should not follow in rulings. It is stated in al-Binaya: If you say: Abu Dawud and Ibn Majah narrated from Buraida, in a marfu‘ hadith: And a man who does not know the truth and judges for people in ignorance is in the Fire. It is said: The hadith refers to an ignorant person who acts on his ignorance and does not refer to others. It is stated in al-Alamkiriyya: Judging has five aspects: obligatory, when he is uniquely suited and no one else is fit; recommended, when others are fit but he is the most suitable and capable; optional, when he and others are equally suitable and capable, and he may accept or decline; disliked, when he is suitable but another is more suitable; and forbidden, when he knows his inability and lack of fairness due to following desires unknown to others, making it forbidden for him. As stated in Khazanat al-Muftin.

² Regarding the saying: How will you judge when a case is presented to you, etc.: It is stated in al-Alamkiriyya: A judge should rule by what is in the Book of Allah Almighty and should know what is abrogating and abrogated in it. He should know what is clear and what is ambiguous, where interpretation differs, like the readings. If he does not find it in the Book of Allah Almighty, he should rule by what came from the Messenger of Allah (ﷺ), and he should know the abrogating and abrogated reports. If reports differ, he takes what is most likely and leans toward it in his striving. He must know the ranks of narrators: some are known for jurisprudence and justice, like the Rightly Guided Caliphs and the Abdallahs and others; some are known for long companionship and precision. Taking the narration of one known for jurisprudence is preferable to one not known for it, and likewise for one known for long companionship over one not known for it. If there is no Sunnah of the Messenger of Allah (ﷺ) in the matter, he rules by what the Companions agreed upon, as acting on their consensus is obligatory. If the Companions differed, he strives and prefers the opinion of some over others if he is qualified for striving. He cannot oppose them all by inventing a third opinion, as their disagreement indicates that what is beyond the two opinions is false. Al-Khasaf said he can, as their disagreement shows there is room for striving. The correct view is what we mentioned. If the Companions agreed on a ruling and one Follower opposed them, if the dissenter was from the Sunna and did not live in the Companions’ era, his opposition is not considered, and if a judge rules by his opinion against the Companions’ consensus, it is invalid. If he lived in the Companions’ era and competed with them in fatwas, and they permitted him to strive, like Shurayh and al-Sha‘bi, consensus is not established due to his opposition. If a ruling comes from some Followers and nothing is reported from others, Abu Hanifa has two narrations: in one, he said: I do not follow them, which is the apparent view of the school. In the narration of al-Nawadir, he said: If one of them issued a fatwa in the Companions’ era and they permitted his striving, like Shurayh, Masruq ibn al-Ajda‘, and al-Hasan, I follow them. As stated in al-Muhit. If there is no opinion from the Companions and there is consensus among the Followers, he rules by it. If they differ, he prefers the opinion of some and rules by it. If there is nothing from that, if he is qualified for striving, he analogizes it to similar rulings, strives with his opinion, seeks the truth, and rules by it. If he is not qualified for striving, he seeks a fatwa and follows the mufti’s ruling, does not rule without knowledge, and is not shy to ask. Two matters must be known: first, if our companions, Abu Hanifa, Abu Yusuf, and Muhammad, agree on something, the judge should not oppose them with his opinion. Second, if they differ among themselves, Abdullah ibn al-Mubarak said: Take Abu Hanifa’s opinion, as he was among the Followers and competed with them in fatwas. As stated in Muhit al-Sarakhsi. If no narration exists from Abu Hanifa and his companions (may Allah have mercy on them) and one exists from later scholars, he rules by it. If later scholars differ, he chooses one. If nothing exists from later scholars, he strives with his opinion if he knows the methods of jurisprudence and is recognized among jurists. It is stated in al-Durr al-Mukhtar and Radd al-Muhtar: The judge, like the mufti, takes Abu Hanifa’s opinion absolutely, then Abu Yusuf’s, then Muhammad’s, then Zufar’s and al-Hasan ibn Ziyad’s, which is the correct view. Some said the fatwa follows Abu Yusuf in matters related to judging due to his greater experience.

¹ Regarding the saying: Whoever seeks judging, etc.: It is stated in al-Durr al-Mukhtar and Radd al-Muhtar: He should not seek judging with his heart or ask for it with his tongue. In al-Khulasa: One who seeks authority is not appointed. However, if he is uniquely suited, with no one else fit for judging, he must seek it to protect Muslims’ rights and repel oppressors’ injustice. The Shafi‘is and Malikis recommended seeking judging for one of obscure reputation to spread knowledge.

² Regarding the saying: Whoever is made a judge among people has been slaughtered without a knife: Al-Khasaf cited in Adab al-Qadi hadiths on the dislike of entering judging and the permissibility of it. Some righteous people entered it, and some righteous people refrained, but refraining is better, safer, and more righteous in faith. This is a matter of disagreement among scholars: after fulfilling the conditions of judging, is it permissible to undertake it? Some said it is disliked, as stated in al-Muhit, based on the Prophet’s (ﷺ) saying: Whoever is tested with judging is as if slaughtered without a knife. It is narrated that Abdullah ibn Wahb was appointed as a judge but refused, retired, and entered his home. Everyone who visited him scratched his face and tore his clothes. A Companion came to the window and said: O Abu Abdullah! If you accepted judging and acted justly, it would be better. He replied: Do you say this with your mind? Have you not heard the Messenger of Allah (ﷺ) say: Judges will be raised with rulers, and scholars with prophets? It is well-known that Abu Hanifa was tasked with judging but refused, even when struck ninety lashes. When he feared for himself, he consulted his companions, and Abu Yusuf permitted it, saying: If you-kernelized, you would benefit people. Abu Hanifa said: If I were ordered to swim across the sea, I would be more capable of it. He foresaw you as a judge and lowered his head, not looking at him afterward. As stated in Khazanat al-Muftin. Muhammad was called to judge but refused, was chained and imprisoned, then compelled to accept. As stated in al-Inaya and Sharh al-Hidayah. Al-Karkhi, al-Khasaf, and Iraqi scholars said, per the school’s founder, it is not permissible unless compelled. Our region’s scholars said: There is no harm in accepting it for one fit and safe from injustice, but refraining is better for others, as the Companions and their followers accepted it without dislike. As stated in al-Wajiz li-l-Kurdari. It is disliked for one who fears deviation, but not if he is safe. As stated in al-Kafi. In al-Yanabi‘: He should not seek or ask for authority. Seeking is saying to the imam: Appoint me as judge. Asking is saying to people: If the imam appointed me judge of such a city, I would accept, hoping it reaches the imam to appoint him. Both are disliked. Some said: If appointed without asking, there is no harm in accepting. Most scholars (may Allah have mercy on them) said entering judging is permissible, but refraining is resolute. As stated in al-Sirajiyya and al-Tatar Khaniyya.