Justice: The Judge And The Court

This is another article in the chapter Justice from the classical manual on Sharia called Reliance of the Traveller. The articles are posted one by one in the order they are given in the book.

022.0 THE JUDGE AND THE COURT

022.1 The necessary qualifications for being an Islamic judge (qadi) are:

(a) to be a male freeman;

(b) to have full capacity for moral answerability (taklif def: c8.1);

(c) to be upright (024.4);

(d) to possess knowledge (0: of the rulings of Sacred Law, meaning by way of personal legal reasoning (ijtihad) (A: from primary texts), not merely by following a particular qualified scholar (taqlid) (A: i.e. if he follows qualified scholarship, he must know and agree with how the rulings are derived, not merely report them). Being qualified to perform legal reasoning (ijtihad) requires knowledge of the rules and principles of the Koran, the sunna (A: in this context meaning the hadith, not the sunna as opposed to the obligatory), (N: as well as knowledge of scholarly consensus (ijma·. def: b7», and analogy (def: III below), together with knowing the types of each of these. (A: The knowledge of each “type” below implies familiarity with subtypes and kinds, but the commentator has deemed the mention of the category as a whole sufficient to give readers a general idea.)

(I) The types of Koranic rules include, for example:

(1) those (‘amm) of general applicability to different types of legal rulings;

(2) those (khass) applicable to only one particular ruling or type of ruling;

(3) those (mujmal) which require details and explanation in order to be properly understood;

(4) those (mubayyan) which are plain without added details;

(5) those (mutlaq) applicable without restriction;

(6) those (muqayyad) which have restrictions;

(7) those (nass) which unequivocally decide a particular legal question;

(8) those (zahir) with a probable legal signification, but which may also bear an alternative interpretation;

(9) those (nasikh) which supersede previously revealed Koranic verses;

(10) and those (mansukh) which are superseded by later verses.

(II) The types of sunna (A: i.e. hadith) include:

(1) hadiths (mutawatir) related by whole groups of individuals from whole groups, in multiple contiguous channels of transmission leading back to the Prophet himself (Allah bless him and give him peace), such that the sheer number of separate channels at each stage of transmission is too many for it to be possible for all to have conspired to fabricate the hadith (A: which is thereby obligatory to believe in, and denial of which is unbelief (kufr));

(2) hadiths (ahad) related by fewer than the above-mentioned group at one or more stages of the transmission, though traced through contiguous successive narrators back to the Prophet (Allah bless him and give him peace). (n: If a hadith is transmitted through just one individual at any point in the history of its transmission, the hadith is termed singular (gharib). If it is transmitted through just two people at any stage of its transmission, it is termed rare (‘aziz). If its channels of transmission come through only three people at any point of its history, it is termed well-known (mashhur). These designations do not directly influence the authenticity rating of the hadith, since a singular hadith, for example, might be rigorously authenticated (sahih), well authenticated (hasan) (N: hadiths of both types being obligatory for a Muslim to believe in, though someone who denies them is merely considered corrupt (fasiq), not an unbeliever (kafir)), or not well authenticated (da’if), depending on the reliability ratings of the narrators and other factors weighed and judged by hadith specialists);

(3) and other kinds; (n: Yusuf Ardabili mentions the following in his list of qualifications for performing legal reasoning (ijtihad):)

(4) hadiths (mursal) from one of those (tabi’i) who had personally met (N: not only met, but actually studied under) one or more of the prophetic Companions (Sahaba) but not the Prophet himself (Allah bless him and give him peace) (n: hadiths reported in the form, “The Prophet said [or did] such and such,” without mentioning the Companion who related it directly

from the Prophet);

(5) hadiths (musnad) related through a contiguous series of transmitters back to the Prophet (Allah bless him and give him peace);

(0) hadiths (muttasil) related through a contiguous series of transmitters (n: either from the Prophet (Allah bless him and give him peace), such a hadith being termed ascribed (marfu’), or else only from one of the Companions, such a hadith being termed arrested (mawquf»;

(7) hadiths (munqata’) related through a chain of transmitters of whom one is unknown (n: though if two or more are unknown, it is not considered merely incontiguous (munqata’), but rather problematic (mu’dal);

(8) the positive and negative personal factors Uarh wa ta’dil) determining the reliability ratings of the individual narrators of a hadith’s channel of transmission;

(9) the positions held by the most learned of the Companions (Sahaba) on legal questions, and those of the scholars who came after them;

(10) and on which of these positions there is scholarly consensus (def: b7), and which are differed upon (Kitab aI-an war Ii a ‘mal al-abrar fi fiqh aI-Imam al-Shafi’i (yll), 2.391). (n: The English glosses and remarks on the meanings of the above hadith terminology are from notes taken by the translator at a lesson with hadith specialist Sheikh Shu’ayb Arna’ut.)

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