The Rules of Conduct for the Judge
- :Jawadi Amuli
It has been made clear that the judiciary is necessary to protect human society and that its criterion is nothing other than revelation. In this section, we wish to discuss its external realization and how it can exist in the desirable form that will afford the application of divine justice derived from revelation.
The administration of justice in human society is possible through a judge who has knowledge of the divine criterion for judiciary and who believes in it and acts in conformity with it. If knowledge, faith, and action did not exist together, the criterion itself would not have any effect, for it would be like a lamp in the hand of a blind person who can neither benefit from it himself nor benefit others.
He would not be safe from stumbling and the lamp would either break or be extinguished. Thus, the practising judge has to be a just scholar ('alim 'adil). Man is controlled by three important faculties from which springs felicity or misery. They are:
1. his intellect ('aql), through which he grasps matters;
2. his Desire (shahwah), through which he seeks things and wants them for himself;
3. his Anger (ghadab), through which he repels from himself what he dislikes.
Knowledge and justice must inform these three faculties, so that the judge may not deviate in judgement or depart from the path of truth. His intellect should be directed towards acquiring and teaching that which has been brought by the prophets, so that desires (ahwd') do not affect him. There is no room for personal judgement (ray) in' religion, and whoever rules through his personal judgement perishes. He who abandons the Book of Allah, the Exalted, and the Sunnah of His Prophet, has disbelieved; he who relies on himself when faced with a problem is led astray and he who relies on his judgement in ambiguous matters is as one who has made himself his own leader (imam).
Justice should inform his Desire, and he should not rule out of a liking for a particular matter or a specific person. Nor should he rule out of a desire for wealth, status, or position, or for other reasons springing from vain urges. His Anger should be temperate, and he should not rule out of hatred for a matter or hostility to a person,
or out of fear of a threat or intimidation, or for any other reason related to anger, hatred, and the like. The person who is balanced in his intellect through the teaching of the divine revelation and his faith in it, and is balanced in his. Desire and Anger-since his love and hatred are in the way of Allah, the Exalted-such a person is suitable for judgement between people.
Concerning self-discipline, particularly in relation to judiciary, the Noble Qur'an deals with the regulation of the three above-mentioned faculties.
Firstly, it refers to the moderation (ta'dil, a derivative of 'adl, justice; ta'dil means informing something with justice) of the intellect through the scriptural instruction and teachings of the prophets, peace be upon them. He who does not judge according to what Allah has revealed, is a disbeliever. This has been mentioned in the previous section, so we will not repeat it.
Secondly, it refers to the ta'dil of love. God. the Exalted, says:
"O believers, be you securers of justice, witnesses for God, even though it be against yourselves, or your parents and kinsmen .... "(4:135) God, the Exalted, has commanded the believer to be a 'securer of justice', which is more important than upholding justice. He has commanded that his testimony should be for God, even though it may be against himself, his parents, or his kinsmen, so that his love for himself or his kinsmen does not prevent him from establishing justice or bearing witness for God.
If he was required to make an admission, against himself; he should do so. If the establishment of truth calls for testifying against his nearest relatives, he should not hold back from it. Then his Desire would be just, and his love would be for God, and he would be attracted towards God. He would not desire anything that God was not pleased with, nor be tempted by something God disliked. He would not desire an unjust thing or incline towards vanity, and it would not be possible to influence or dominate him through his Desire. Thirdly, it refers to the ta'dil of Anger. As God, the Exalted, says:
"O believers, be you securers of justice, witnesses for God. Let not detestation for a people move you not to be equitable; be equitable-that is nearer to god fearing. And fear God; surely God is aware of the things you do." (5:8)
In this verse, God, the Exalted, commands the faithful to be 'securers of justice' for God and witnesses for justice. Like the previous verse this one is also concerned with justice and equity. God, the Exalted, also warns the believer - lest hatred of a people and enmity to them should lead him to abandon justice and lest hatred should influence his judgement. The judge must be-guided by the laws of God, the Exalted, so that his anger is only for the sake of God, and his hatred for a people must not cause him an unjust ruling. If the faculty of his 'Anger' is regulated in this way, he will have no fear of anyone other than Allah and it will not be possible to influence him through the arousal of his 'Anger'.
When man attains this kind of control over the self, and is possessed of knowledge and justice, and his intellectual and behavioural faculties have been moderated, then it is in order for him to apply himself to adjudication and occupy the position held by none other than the prophet or his authorized trustee (wasi) for even if he is neither a prophet nor authorized as a trustee through a special trusteeship (wisayah) as in the case of the Infallible Imams, peace be upon them-he is a trustee through a general trusteeship in accordance with the texts of appointment (nasb).
It is also proper that this judge should pave judgement through his knowledge, since all dicta are proved through knowledge whereas knowledge is a proof in itself. So if a just judge has knowledge of the truth, then he should judge according to his knowledge, so as to comply with the verses which command ruling with justice. In fact, if the evidence produced is contrary to his knowledge or the denier takes an oath asserting something contrary to his knowledge, he should refrain from judgement or refer the case, for example, to another judge. It is not permissible for him to rule contrary to his knowledge, even if the evidence or the oath is acceptable.
It is not right that his judgement should be revoked or refuted, since this would be like refuting the Infallible Imam, which in turn would be similar to refuting God, the Exalted. That would actually amount to unbelief and practically to polytheism (shirk), though it may not involve creedal unbelief, because creedal unbelief concerns the outright denial of one of the fundamental doctrines of religion.
One of the most important rules of conduct for the judge is to be on guard against bribery when passing judgement, because that amounts to unlawful gain, unfaithful conduct and transgression and has been forbidden by the noble Qur'an:
"Consume not your goods between you in vanity; neither proffer it to the judges, that you may sinfully consume a portion of other men's goods, and that wittingly." (2:188)
The Qur'an has forbidden the giving of money to judges in the hope of extracting an unjust judgement from them. The term idla' (proffering) means sending a bucket down into the well to bring out water from its depths. It should be noted that the use of this word here means that bribery is like a bucket sent down into the bosom of the judge to extract injustice and wrong from his wicked heart.
The inward must be pure and the heart unblemished, so that it does not incline towards wealth and is not influenced by coercion. The Qur'an has forbidden these two qualities in the following verse:
"So fear not men, but fear you Me; and sell not My signs for a little price." (5:44)
The first part of the verse is a prohibition against misplaced fear, as a regulation of the faculty of Anger, and the second is a prohibition against misplaced attraction, as a regulation of the faculty of Desire, along with the suggestion that the whole world is of little worth. If the unjust judge were to take the whole world for making a wrong judgement, he would have sold the judgement of Allah for a 'little price', since what is transitory is of little value however much it may appear to be.
The bribery that has been forbidden is not only of the pecuniary kind. On the contary, it also includes advantages and benefits and may be a particular act performed by the briber, or words of praise, or a display of his respect and reverence for the judge. All these are forbidden, for the term 'bribe' is applicable to them and the, rule concerning it applies to them. 3 In the 'Rules of Conduct for Litigants' we will mention that giving and receiving bribe are both unlawful.
It is apparent from what has been previously mentioned that it is necessary for the judge to be on guard against becoming an advocate for the treacherous person, whether it is by misplaced inclination or repulsion. God, the Exalted, says:
"Surely We have sent down to thee the Book with the truth, so that thou mayest judge between the people by that God has shown thee. So be not an advocate for the traitors." (4:105)
The judge has been forbidden to be an advocate for the traitor and defend him, for the traitor only deceives himself, and so is not liked by Allah, the Exalted. The judge must be on his guard against inclining towards him, defending him, driving away the oppressed person, and standing by the oppressor.
The aim of the judiciary is that the judge should possess the greatest impartiality, emanating through wisdom in the intellectual faculty, through generosity and integrity in the faculty of Desire, and through courage in the faculty of Anger, so that the judiciary becomes free from the pollution of injustice, vanity, and falsehood, and achieves unequalled good. One of the rules of judiciary is that the judge should not hasten with judgement before complete investigation and questioning of the litigants. This is indicated by the statement of God, the Exalted:
"Behold, this my brother has ninety-nine ewes, and I have one ewe. Yet he says, "Give her into my charge"; and he has overcome me in the argument.' Said he, 'Assuredly he has wronged thee in asking for thy ewe in addition to his sheep; and indeed many partners do injury one against the other, save those who believe, and do deeds of righteousness-and how few they are!' And David thought that We had only tried him; therefore he sought forgiveness of his Lord, and he fell down, bowing, and he repented." (38:23-24)
This verse indicates that it is essential to abandon haste in identifying the culprit and the offence, even though it is in compliance with the presumption of the soundness of the case. There is nothing in the verse to indicate criticism in relation to the conduct of the Prophet David, since this episode is narrated in the Surat Sad between two commendations of Dawud, peace be upon him. Before the above-mentioned verse, God, the Exalted, says:
"And We gave him wisdom and speech decisive." (38: 26)
After the verses 23-24, God the Exalted says:
"David, behold, We have appointed thee a viceroy in the earth; therefore judge between men justly." (38:26)
Undoubtedly, a prophet whom Allah has given 'wisdom and speech decisive' and whom He has made a viceroy in the earth, commanding him to judge between men justly, does not hasten in judgement before .decisively completing a proper investigation. Thus it is certain that what issued from Dawud, peace be upon him, was only mentioned as a presumption and a hypothesis, i.e.
it is an injustice to presume the veracity of a hypothetical case. Therefore, the judge must abandon haste in such a decision as well, and must treat both the litigants equally in looking at them and speaking to them. He should know that his tongue is between two flames of fire, and that his tongue is behind his heart; so if it is right for him he should speak, otherwise he should hold back.
If the judge has not learned to conduct himself in accordance with the Divine norms, his judgement would have no significance, even if it were correct; since two matters have to be taken into account in adjudication; firstly, the actual good (al-husn al-fi'li), which is that the judgement should be in accordance with the truth; secondly, the efficient good (al-husn al-fa'ili), which is that the judgement should issue from a pure soul and a heart with certain faith, and without fear of anyone's reproach. 'The judges are of four kinds, three of which belong in the fire and one in heaven. 4 This kind is the one who judges rightly and knows that it is right.
Adapted from: "The Islamic System of Judiciary in the Qur'an" by: "Jawadi Amuli"
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