Justice: The Judge And The Court 3

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.

022.2 It is recommended that the judge be stern without harshness, and flexible without weakness (0: so the litigants do not despise or disdain him, for otherwise, people entitled to rights would not be able to obtain them).
022.3 If the judge needs to appoint another person to handle a part of his caseload because it is too heavy for him, then he may assign someone to deal with the extra cases if the person himself is qualified to be a judge. If the judge does not need to, he may not appoint such a person without special permission (A: from the regional ruler).
022.4 If the judge needs a court secretary, he must be Muslim, upright (def: 024.4), sane, and learned (0: meaning familiar with writing up plaintiffs’ cases, recording what is done in each case and the judge’s decisions, and must be able to distinguish between writing it correctly and incorrectly. The above four conditions are obligatory, there only remaining to be mentioned that the secretary must be male and free).
022.5 The judge should not have a doorkeeper (0: if there is no crowd), though if he needs one, the doorkeeper must be sane, reliable, and unbribable.
022.6 When not in the area of his jurisdiction, the judge may not give legal decisions, appoint others, or hear evidence (0: or claims).
022.7 He may not accept gifts except from someone who customarily gave him gifts before he became judge, who is not a plaintiff, and whose gifts are not more lavish than those given before the judge’s appointment. (0: The same is true for entertaining the judge as a guest, as well as lending articles to him which are of rentable value, such as lending him lodgings.) It is better for a judge not to accept any gifts. (0: And whenever gifts are not lawful to accept, he does not legally own them but must return them.)
022.8 A judge may not decide cases involving his son (0: son’s son, and on down) or his father (0: father’s father, and on up, or cases involving his partner in a shared enterprise).
022.9 He should not decide cases when angry, hungry, thirsty, overwrought, exultant, ill, tired, flatulent, annoyed, or when the weather is irritatingly hot or cold (0: it being offensive for a judge to decide a case in any state that affects his temperament for the worse), though if he does, his decision is implemented.
022.10 The judge should not sit in a mosque to decide cases (0: lest voices be raised therein, and because he might need to bring in the insane, children, a woman in her period, or non-Muslims; for which reasons sitting in a mosque to decide cases is offensive). But if his sitting in the mosque (0: in prayer, spiritual retreat (i’tikaf), or awaiting group prayer) happens to coincide with the coming of two litigants, then he may judge between them (0: without it being offensive).
022.11 The judge should sit with tranquility and gravity (0: as it creates greater respect for him and makes it likelier that he will be obeyed). He should have witnesses present and scholars of jurisprudence to consult with on points of difficulty. If a case is not clear, he should postpone giving a decision on it. He may not merely imitate another’s decision on a case (A: but must be capable of expert legal reasoning (ijtibad) himself).
022.12 The judge handles the cases on a first-come-first-served basis, one case per turn. If two arrive at the same time, they draw lots to see whose case will be heard first. The judge (0: obligatorily) treats two litigants impartially, seating both in places of equal honor. attending to each, and so forth, unless one is a non-Muslim, in which case he gives the Muslim a better seat. He may not treat either litigant rudely, nor prompt one (0: as to how to state his case).
022.13 The judge may intercede with one of them on behalf of the other (0: meaning to ask the two parties to settle their differences, which is what a judge’s “intercession” is. It does not take place until after the truth has been established, which obviates his unfairly inclining to either one) and he may also pay one litigant what the other owes him.
022.14 (N: When assigned to a new jurisdiction,) the judge first looks into the cases of the imprisoned, then orphans, and then of lost and found items.


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