Islamic Justice – Ibn Khaldun’s Al-Muqaddimah
Islamic Justice – what is it? In our modern times with constant discussion revolving around the topic of Shariah and Islamic law, we often find that classical references are needed. Sure modern analysis and commentary are important to put our times into context but returning to the source can also give us more clarity on the matter. A key issue that is often not discussed is what the actual rules of procedure in a court are.
One of the most beautiful and succinct letters that I have ever read on the topic is from a section of Al-Muqadimmah by Ibn Khaldun that speaks on the “Office of the Qadi (Judge)” – there is no simpler guideline for judges than that one page Hazrat Umar (RA) wrote. All judges, regardless of jurisdiction, should read the letter and memorize it as a guideline for the court, as it provides overarching principles of fairness and justice.
Ibn Khaldun writes:
“The office of judge is one of the positions that comes under the caliphate. It is an institution that serves the purpose of settling suits and breaking off disputes and dissensions.”
It proceeds, however, along the lines of religious laws laid down by the Quran and Sunnah. Therefore, it is one of the positions that belongs to the caliphate and falls under it generally.
During the early days of the caliphate system, caliphs exercised the office of judge personally. They did not permit anyone else to function as a judge in any matter. The first caliph to give charge to someone else with the exercise of the office of judge was Hazrat Umar (RA). He appointed Abu d-Darda’ to judge with him in Medina, Shurayh as judge in al-Basrah, and Abu Musa al-Ash’ari as judge in Al-Kufah. On appointing (Abu Musa), he wrote to him the famous letter that provides the basic tenants for a judge, in which he says:
“Now, the office of judge is a definite religious duty and a generally followed practice.
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Understand the depositions that are made before you, for it is useless to consider a plea that is not valid.
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Consider all the people equal before you in your court and in your attention, so that the noble will not expect you to be partial and the humble will not despair of justice from you.
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The claimant must produce evidence; from the defendant, an oath may be exacted.
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Compromise is permissible among Muslims, but not any agreement through which something forbidden would be permitted, or something permitted; forbidden.
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If you gave judgment yesterday, and today upon reconsideration come to the correct opinion, you should not feel prevented by your first judgment from retracting; for justice is primeval, and it is better to retract than to persist in worthlessness.
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Use your brain about matters that perplex you and to which neither Quran nor Sunnah seem to apply. Study similar cases and evaluate the situation through analogy with those similar cases.
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If a person brings a claim, which he may or may not be able to prove, set a time limit for him. If he brings proof within the time limit, you should allow his claim, otherwise you are permitted to give judgment against him. This is the better way to forestall or clear up any possible doubt.
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All Muslims are acceptable as witnesses against each other, except such as have received a punishment provided for by the religious law, such as are proved to have given false witness, and such as are suspected (of partiality) on (the ground of) client status or relationship, for God, praised be He, forgives because of oaths and postpones (punishment) in face of the evidence.
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Avoid fatigue and weariness and annoyance at the litigants.
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For establishing justice in the courts of justice, God will grant you a rich reward and give you a good reputation. Farewell.”
In this letter we find a plethora of matters – substance of plea, impartiality, burden of proof, settlement, hierarchy of law and judicial preference, amendment of judgment, credibility of witnesses, court mannerism, and overlying principles of justice and fairness. Nearly covering all facets of rules of procedure in a short but comprehensive letter. It is apt to conclude that traditional texts have shaped modern law.
Plato is later quoted in the footnotes of the text to have stated:
“Justice in something is one form, whereas injustice is many forms. Therefore it is easy to commit an injustice, and difficult to pursue justice. Justice and injustice are like hitting and missing (the target) in shooting. Hitting (it) requires practice and experience, while it does not require anything of the sort to miss.”
It is high time that we turn our attention to the classical sources in order to bridge the gaps and rectify the lacunas that exist in our judicial system, for the wisdom contained in classical texts is nothing but the conclusion of centuries of experience.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
