With the Hadith - The Judge of Disputes

With the Hadith

The Judge of Disputes

We greet you all, dear listeners, everywhere, in a new episode of your program "With the Hadith," and we begin with the best greeting, so peace, mercy, and blessings of God be upon you.

Abu Dawood narrated in his Sunan, he said:

Amr bin Awn told us, saying: Shareek told us, from Simak, from Hanash, from Ali, peace be upon him, who said:

"The Messenger of God, may God bless him and grant him peace, sent me to Yemen as a judge, so I said, 'O Messenger of God, you are sending me when I am young and have no knowledge of judgment?' He said, 'God will guide your heart and strengthen your tongue. When two disputants sit before you, do not judge until you hear from the other as you heard from the first, for that is more likely to make the judgment clear to you.' He said: 'I have been a judge ever since, and I have never doubted a judgment since.'"

Dear listeners:

The Messenger, may God bless him and grant him peace, used to judge between people in the disputes that occurred between them, just as he would assign other Muslims to judge on his behalf... And here in this hadith, he assigns Ali to judge in Yemen... and teaches him, thus teaching us with him, how judgment should be in disputes between people... as he said to Ali: "When two disputants sit before you, do not judge until you hear from the other as you heard from the first." And from it we learn:

1- That in judging disputes, there must be a plaintiff and a defendant, and these are the two disputants in the case... And without the plaintiff, there is no case...

2-There is no judgment except in a court of law: The presence of the two disputants before the judge is a condition for the validity of the judgment and a condition for the acceptance of evidence from the disputants... Otherwise, no judgment is valid in which the two disputants do not meet before the judge and each presents his argument in the same session, and then the judge rules between them.

3-That the plaintiff's argument is the evidence that confirms his claim... This may be a written document and witnesses to its validity, or witnesses to the incident in question if he does not have a written document, and the evidence for this is the saying of God Almighty: {O you who have believed, when you contract a debt for a specified term, write it down. And let a scribe write [it] between you in justice. Let no scribe refuse to write as Allah has taught him. So let him write and let the one who incurs the debt dictate. And let him fear Allah , his Lord, and not leave anything out of it. But if the one who incurs the debt is mentally deficient or weak or unable to dictate himself, then let his guardian dictate in justice. And bring to witness two witnesses from among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses - so that if one of the women errs, then the other can remind her. And let not the witnesses refuse when they are called upon. And do not be [too] weary to write it, whether it is small or large, for its [specified] term. That is more just in the sight of Allah and stronger as evidence and more likely to prevent doubt between you, except when it is an immediate transaction which you conduct among yourselves. For then there is no blame upon you if you do not write it. And bring witnesses when you conclude a contract. And let no scribe or witness be harmed. And if you do so, then it is [grave] disobedience to you. And fear Allah . And Allah teaches you. And Allah is Knowing of all things.}

4-That the defendant's argument in rejecting the lawsuit is the oath: That is, when the plaintiff does not have anything to prove his claim, then the judge asks the defendant to swear an oath that the lawsuit filed against him is false. This is what the Messenger, may God bless him and grant him peace, explained in the hadith narrated by al-Tirmidhi from Wael bin Hujr, from his father, who said: A man from Hadhramaut and a man from Kindah came to the Prophet, may God bless him and grant him peace, and the Hadhrami said: O Messenger of God, this man has taken over land that belongs to me. The Kindi said: It is my land, and it is in my possession, and he has no right to it. The Prophet, may God bless him and grant him peace, said to the Hadhrami: Do you have evidence? He said: No. He said: Then you have his oath. He said: O Messenger of God, the man is wicked and does not care about what he swears to, and he is not cautious about anything. He said: You have nothing from him except that. He said: So the man went to swear to him, and the Messenger of God, may God bless him and grant him peace, said when he turned away: If he swears falsely to take your money unjustly, he will meet God while He is turning away from him.

5- As for how the court is formed in Islam and in the coming Caliphate state soon, God willing, it will be as follows, according to what Hizb ut-Tahrir has adopted in its constitution.

6- It is not permissible for the court to consist of more than one judge who has the authority to decide in the judiciary... However, it is permissible to have one or more judges with him who have the authority to consult and give opinions, and their opinion is not binding on the judge assigned to rule in the case... And the evidence for this is the action of the Messenger, may God bless him and grant him peace, as he did not assign more than one judge to a single case...

7- It is permissible to appoint more than one judge in the same country and for them to work in the same place, and they have the authority to judge in all types of cases, but they work in separate courts, as each court has one judge who has the authority to decide in a single case... It is also permissible for the judge to appoint a judge in specific cases and prevent him from others, i.e., to specialize in specific cases and not others, because the judiciary is a delegation from the Caliph, and it is like an agency in every respect, with no difference between them, as it is from the agency, and the agency may be general... It is also permissible for it to be specific. Accordingly, it is permissible to appoint the judge in specific cases, and to appoint another in other cases and in what he is appointed for, even in one place, and the important thing is that only one judge rules in the same court... The Messenger, may God bless him and grant him peace, delegated the judiciary in a single case, as happened in his delegation to Amr ibn al-Aas, and he delegated the judiciary in all cases in a state of the states, as he delegated Ali bin Abi Talib, may God be pleased with him, to judge in Yemen, which indicates the permissibility of specializing the judiciary and the permissibility of generalizing it.

8- Accordingly, it is permissible for the levels of courts to be multiple, depending on the specialization of judges in different types of cases... And this organization existed among Muslims in the early ages. Al-Mawardi says in Al-Ahkam Al-Sultaniyyah: "Abu Abdullah Al-Zubairi said: The emirs in Basra have always been appointing a judge for the Grand Mosque for a period of time, calling him the judge of the mosque, who judges in two hundred dirhams and twenty dinars and less. And he imposes alimony, and he does not exceed his position and what is assigned to him."

9- The judiciary in Islam, in terms of ruling in the case, is one level, so there are no appeal courts or courts of cassation in Islam, and therefore there are none in the Caliphate state. If the judge pronounces the judgment, his judgment is final and no other judge can overturn it, as the legal rule is that (ijtihad is not overturned by its like)... Therefore, it is not correct to have courts that overturn the judgments of other courts.

• However, there are certain cases in which the judge's ruling is overturned, which are:

• 1-If he rules with rulings of disbelief, according to his saying, may God bless him and grant him peace: "Whoever introduces into this matter of ours that which is not part of it, it is rejected."

• 2- If he rules with a ruling that contradicts a definitive text from the Book or the Sunnah or the consensus of the Companions, as Abu Dawood narrated from Jabir that a man committed adultery with a woman, so the Prophet, may God bless him and grant him peace, ordered him to be flogged, then he was informed that he was married, so he ordered him to be stoned.

• 3-If he rules with a ruling that contradicts the reality, such as ruling that a person be punished in kind on the basis that he is a murderer, and then the real murderer appears... Abd al-Razzaq narrated in his Musannaf from Abi Harb bin al-Aswad al-Dili, from his father, who said: A woman who gave birth after six months was brought to Omar, and Omar wanted to stone her, so her sister came to Ali bin Abi Talib, may God be pleased with him, and said: Omar is stoning my sister, so I beseech you by God if you know that she has an excuse, tell me about it. Ali said: She has an excuse. So she shouted a Takbir that Omar heard from where he was, and she went to Omar and said: Ali claimed that my sister has an excuse, so Omar sent to Ali, what is her excuse? He said: God Almighty says: * (Mothers shall breastfeed their children for two whole years) *, and He said: * (And his carrying and weaning [period] is thirty months) *, so the pregnancy is six months, and the weaning is twenty-four months. He said: So Omar released her.

In these cases and the like, the judge's ruling is overturned.

• The one who has the authority to overturn the ruling in such cases is the judge of grievances.

• Finally: It is good to admonish the disputants before and after the judgment, as Muslim narrated in his Sahih from Umm Salama, who said: The Messenger of God, may God bless him and grant him peace, said: You dispute with me, and perhaps some of you are more eloquent in his argument than others, so I judge for him according to what I hear from him, so whoever I take away a part of his brother's right, let him not take it, for I am only taking away a piece of fire for him.

Dear listeners, until we meet you with another prophetic hadith, we leave you in God's care, and peace, mercy, and blessings of God be upon you.