The Criterion for the Judiciary

It has been explained in the previous section that judiciary is necessary for safeguarding social system and to curb unruly behaviour. In this section we will discuss its criterion. It may appear at first that the human intellect can independently discover these rules and that its range covers what the thinking man attains through his judgement without resorting to heavenly scriptures and, in fact, without needing them at all.

However, a deep study of the evidence for the necessity of judiciary shows that the human intellect is insufficient for it and is incapable of determining the criterion for judiciary and defining its scope.

This is because the views of one person-as has been mentioned are not all in agreement with those of other people. Each person considers his ideas to be right and regards other people's ideas as misconceptions. He imagines that hg views are appropriate and would benefit mankind, while the ideas of others are inadequate and harmful. Thus ensue the intellectual arguments and the academic debates and discussions.

In addition to this, everyone is naturally disposed to put one's interests and those of one's group and family above those of others, regarding them to be better entitled than others. This would have great consequences for the method of laying down and applying the law. The following conclusions can be derived from the above discussion:

The need to remove disagreements and solve disputes makes the existence of a judiciary necessary. The human intellect is not adequate to provide felicity to human society on its own. On the contrary, it is the light that illuminates the way-the way indicated by divine revelation-and guides those who follow it to the desired goal. If the human mind-because of its intellectual inadequacy and its being infested by questionable motives-is inadequate in determining the criterion for judiciary, then an inquiry should be made into what the perfect standard for judgement between people should be. This may be done by looking at two points:

Firstly, the inability of human thought and its failure to offer the judicial standard.

Secondly, the genius of divine revelation and its competence in determining the judicial system, since it has been derived from the Unseen and transcends the natural laws, as we will see, God willing.

The first point is indicated by the statement of God; the Exalted:

"... Messengers bearing good tidings, and warning, so that mankind might have no argument against God, after the Messengers; God is All-mighty, All-wise." (4:165)

This indicates that the intellect on its own is inadequate for attaining perfection and guidance to the most correct path. For were it sufficient, the argument for the adequacy of the intellect and reliance on its guidance would be justified.

If people committed sins and per. formed offences, the argument of Allah against them would be established (for the intellect which had been given them had forbidden them from it, so why did they not follow it but go against it?) It would then be right for them to be punished for their sins and evil deeds. However, the noble Qur'an does not support or sanction punishment before sending Messengers. God, the Exalted, has said:

"We never chastise until We send forth a Messenger." (17:15)

"Had we destroyed them with a chastisement aforetime, they would have said, 'Our Lord, why didst Thou not send us a Messenger, so that we might have followed Thy signs before we were humiliated and degraded?" (20:134)

This proves that it is not God's practice to chastise His creatures before dispatching Messengers, nor to humiliate, disgrace, and destroy through punishment a people before sending prophets to them. Were it not so, these creatures would protest to God that the punishment was carried out before the proof was completed. The weakness of human thought and the fact that man is not aware of all beneficial and harmful consequences of his acts, even in matters closest to him, is pointed out in the statement of God, the Exalted, when explaining the distribution of inheritance and appointing specific shares to each heir:

"You know not which out of them is nearer in profit to you." (4:11)

When explaining the necessity of belief in revelation and the impermissibility of turning away from it, God, the Exalted, says: "So when their Messengers brought them the clear signs, they rejoiced in what knowledge they had, and were encompassed by what they mocked at." (40:83)

This indicates that man's knowledge does not guarantee him happiness, otherwise it would not be wrong on his part to be content with it. However, it is not so because he is incapable of attaining through it what he needs. Thus it is reprehensible for man to confine himself to his own knowledge and turn away from what the prophets have brought. In the following statement, God, the Exalted, indicates that man is unable to establish justice and determine the rules of a just judiciary with the sole means of the intellect that has been given him:

"Indeed we sent Our Messengers with the clear signs, and We sent down with them the Book and the Balance so that men might uphold justice. And We sent down iron, wherein is great might, and many uses for men, and so that God might know who helps Him, and His Messengers, in the Unseen. Surely God is All-Strong, All-Mighty." (57:25)

This indicates that the aim of sending the Messengers with clear signs and sending the scriptures with them was that the people should uphold justice. If man were able to achieve justice through his intellect and without the need for revelation, there would have been no need for it. The reason for man's being unable to define the standard for the judiciary is that there lie before him various worlds and higher and lower levels and degrees of existence. He moves from one world to another and from one level to another and he is immortal and imperishable.

Since he moves from one abode to another, he must seek perfection through a power that does not cease or perish, and which does not harm his world or his Hereafter. Obviously, determining such a power requires a comprehensive knowledge of the true nature of man and what makes him ascend to the highest stages or brings him down to the lowest levels. How does that knowledge compare with the little knowledge that has been given man, who does not have much understanding of what will benefit or harm him?

The second point-the capacity of divine revelation in explaining the judicial system-is indicated by several Qur'anic verses.

"Whoso judges not according to what God has sent down-they are the unbelievers." (5:44)

"Whoso judges not according to what God has sent down-they are the evildoers." (5:45)

"Whosoever judges not according to what God has sent down-they are the ungodly." (5:47)

The difference between unbelief (kufr) and the other contingent evils, as regards the judiciary, will be explained. Among them is the statement of God, the Exalted:

"Is it the judgement of pagandom then that they are seeking? Yet who is fairer in judgement than God, for a people having conviction?" (5:50) These verses suggest that judgement is either the judgement of Allah, determined by revelation, or the judgement of pagandom (jahiliyyah). The latter includes every judgement and law followed by men, whether it is described as civilized or not and whether it is accepted or rejected by all people or some of them.

This is because there is nothing after truth except falsehood, and following that which is not from Allah, the Exalted, necessitates moving away from the straight path which leads to paradise. There are only two paths, whatever they may be called, and no third one: the path of Allah, guiding to the straightway, and the path of the false god (taghut) leading down into the deep abyss of perdition. Furthermore, God, the Exalted, says:

"And whatever you are at variance on, the judgement thereof belongs to God. That then is God, my Lord; in Him I have put my trust, and to Him I turn penitent." (42:10)

The verse indicates that the sole recourse for settling differences is judgement of Allah, and no other, whether these differences concern rights, property or some other matter. God, the Exalted, says:

"So judge between them according to what God has sent down, and do not follow their inclinations to forsake the truth that has come to thee." (5:48) This judgement is none other than that which has been revealed by Allah. There are other verses which restrict the criterion for judiciary to divine revelation, indicating that everything besides that is ignorance and error, that anything other than the law (Din) of Allah is not acceptable and that any other path will not lead to the pleasure of Allah and paradise.

On the contrary, it will lead to Allah's displeasure and "the abode of ruin-Gehenna, wherein they are roasted; an evil establishment!" (14:28-9), for it is not a path which guides to the right goal. That is why the Mighty and Sublime has addressed those who have turned away from the revelation and from the Messenger, saying:

"Where then are you going? It is naught but a Reminder unto all beings." (81:26-27)

The meaning of the term knowledge ('ilm) becomes clear when God the Exalted, urges that we should not say what we do not know and that we should not deny what we do not know. He emphasizes that affirmation and denial must be through knowledge, and confirmation and rejection through understanding. He says of those who disbelieve without knowledge:

"No; but they cried lies to that whereof they comprehended not the knowledge, and whose interpretation had not yet come to them." (10:39)

"Has not the compact of the Book been taken touching them, that they should say concerning God nothing but the truth?" (7:169)

This verse urges one to restrict oneself to speaking only through knowledge and affirming only through understanding. Similarly, God, the Exalted, also says:

"And pursue not that thou hast no knowledge of; the hearing, the sight, the heart-all of those shall be questioned of" (17: 36)

The knowledge mentioned in these and other similar verses refers to that which relates to happiness and a good life and is in keeping with the revelation of God, the Exalted, to His Messenger. It is immune from the evils of ignorance, forgetfulness; and tyranny, and it is rightly the object of hope and the sole basis for judiciary. As for the intellect, it is independent in matters of doctrine (usul al-Din) and its guidance makes possible a knowledge of Allah, the Exalted, and faith in Him.

Similarly, it facilitates a knowledge of the Messenger and the necessity of his infallibility and freedom from sin and error in delivering the message, and a knowledge of the doctrine of the Hereafter and man's resurrection with his soul and body for the Judgement. Despite this, however, the intellect is incapable of grasping many matters relating to these important principles, and is also incapable of understanding the benefits and harms latent in actions, laws, and customs.

Therefore, it is always in need of the guidance of revelation in circumstances that come upon it and in need of its instructions on what it cannot attain by itself. God, the Exalted, says:

"... and to teach you that you knew not." (2:151)

To conclude, the criterion of the judiciary is the criterion which Allah has sent down through revelation and laid down for the people in order that they may establish justice and equity amongst themselves.

Adapted from the book: "The Islamic System of Judiciary in the Qur'an" by: "Jawadi Amuli"