FJT01 Fiqh of the Judiciary and Testimonies – The Book of the Judiciary
Channel: Hatem al-Haj
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today we will start the book of PA, which is the book of the judiciary. And this is the last book of
the book of testimonies. That's pretty much the same segment.
Same theme. So this is going to be the last segment of
shalonda, or commentary on how long that is based on none of Nicodemus on that 100, which is a Hungary primer.
In the year 620, after the
hero, those four books and the
first one is the on the second would be an opener, the third would be a coffee and the fourth in order of
basically, vastness would be morning.
today, we will start with Kava or the book of the judiciary. And we will probably have four more weeks to finish the entire book that's in this segment and the entire book and
here under the book of the judiciary,
for the key failure email, that's boatmen
where the water man, he also Koda, who is
what I'm used
to he, in order for
it is a fabric if the man must appoint enough qualified judges, those who are qualified must accept the positions, if they are asked, and there are no others to replace them. If there are others who are qualified, then it is better for one to avoid, then it is better for one to avoid, okay, so as for the key fire, it's a collective or communal obligation, the owner will have to set up enough copies or enough judges that he is doing this, he is the head of the authority. So he represents them, hmm is an agent acting on behalf of them. And the contract between them and the man is is a contract of basically the key. They made them an agent to act on behalf of them. And
he is hired by the oma
to perform the in this role. So the head of the authority or his deputies, because that of the authority can't do everything. The head of authority or his deputies take the same ruling.
So they need to hire enough judges.
Because in Islam, there is a great emphasis on law and a great emphasis on lawfulness
and keeping people from chaos and from transgression.
This communal obligation
now, so this is communal obligation, the oma would be in sin, all the Ummah will be in sin, if there are not enough judges, to basically enforce the laws and to settle disputes between people and enforce the laws.
If a particular person was asked to be a judge, or was appointed, then they must accept
they must accept
if there is no one else to take their place. If there is no qualified like you are in a certain village or a certain town, the Imam commissioned you to become the judge. If there is no one else that is qualified to be a judge, then you they're proving for you is that it is where they want you. You must
and that is
no one helps. Qualified
Okay, so he says here there is no, there's like one of two.
There's one of two scenarios here. One scenario, no one else is qualified to be a judge one scenario someone else is qualified to be a judge. And that scenario, no one else is qualified to be a judge you must accept, but there is less here
and you will find this in the larger books, because the larger books will have more nuances and more details. So, he says here, you must accept that in the larger books, you will have some more nuances. So you must accept unless it will keep you from something else more important than
Minho, or something like this. So it keeps you from something else, that is more important. Because at the end of the day, human beings are human beings, and they may have whatever this person
is, is that it doesn't have to necessarily be so altruistic, also, whatever this person is a wealthy businessman. And
he has a large family to take care of, and he's unable to basically dedicate himself to the position and leave his business.
And basically, you'll die
and cause harm and to his, to his family. What if this person is basically on track to become a metalhead, and he's afraid that becoming a judge will keep him away from, you know, further learning and research to reach the position of metalheads. For instance,
although she had the job to be much, that's a different story that we have come to a little bit later.
What if the person is doing something more important, like you know, for himself or for the community, then in this case, they may, they may or may decline? The position. And in this case, the Imam would have to figure out a way to appoint someone qualified in that particular locality. If this is a communication, who determines what that more important thing is the community or the individual person, what the individual person because this is where addressing the individual person here, when we say it's wired upon you, we're addressing him, and we're leaving it up to him to determine whether or not he will take the job. So, he will not be forced to take the job. Although
he can pressure him can force him that you can pressure
but what if there is someone else qualified? What if there is someone else qualified? Then what do they say here? They say it is better not to accept the position it is preferred.
If there are others who are qualified, then it is better for one to avoid.
So better to
Okay, so I think that there is much that we can learn from this. There is much that we can learn from those because often times oftentimes, oftentimes, we compete for those roles,
you know, leadership roles.
And these roles are going to be a source of this grace and remorse for people in the hereafter. That's what the prophet sallallahu Sallam said, when he said
physio, and when in lemon, be happy at the levy on E fee. So that's how it was reported by Muslim the profits of Southern cetera with
your week. And certainly, it was always weakness. There was not weakness and piety. No one was more sincere than the Prophet himself sell
So the canopy of the
ovens did not give shade to someone who are the earth that did not carry someone that is more sincere and devoted than Amazon. So that's that for this weakness. And that was weakness in his raw he administration and his reasoning in his administration, and his management skills in the skill sets that are needed for leaders.
So he told them, You are weak in this respect. And then he said, and it is a trust, you know, leadership positions, they are trust.
And it will be on the Day of Judgment, a source of disgrace, and remorse, except for one who takes it with a full sense of responsibility. And this shores is all his obligations towards fulfills the obligations of it, or the requirements of it, that's a huge responsibility, that would make us step back from leadership roles.
As much as as we can. So when we, you know, and the litmus paper test, because we don't want bias people, because of all bias, people step back. And when people step forward, then we will leave all these positions to the most wicked in the society that have no concern about, you know, the year after three months in the year after anything, but
litmus paper test is that if you're doing it
against your own desire, then you're probably you're probably okay.
You know, if you're not pursuing it out of your own desire, your own eagerness, you don't have that Shabbat, you don't have that craving for it. You're not craving it, but you say to yourself, I'm just going to need to do it.
Because I'm the most qualified to do something like this.
And I fear that people will basically
not live up to the
trust. So that is when you you should proceed and you should continue but without fighting too much. Because at the end of the day, one thing that also Islamists in general for then is that basically,
lack of observing 100 County universe of decrees that Allah is in control. And, you know, yes, I will
lie on the line Hi, this Dean will not diminish while I'm alive. And we want people to have that sense of responsibility for the deen. At the same time. We want people also to respect their calibers, because we're not in the caliber of Abu Bakr, of course, wants people to respect their calibers, and we want people to,
you know, tie your camel, but put your trust in God, keep your powder dry, but put your trust in God. So do whatever it is that you can do without agitation without, you know, aggression, which, which is something that we do see, you know, people that think that they can run countries, if you give them like, a little master to run or another organization to run the fight, you know, over it. And basically, they demonstrate the worst advocates
and their complete lack of spirituality, the complete lack of trust in God.
They think each one of each one thinks that they are abubakr or the automa. And, you know, that they have to find for the cause of God when they're fighting for their, the cause of their ego.
Or they are misguided, not necessarily their ego, they're misguided, they really may think that they are
it without them, things will crumble, and you know, things will fall apart, which is almost always an option.
better to leave it better to basically decline,
particularly in Java, because Java also is a is an enormous responsibility. The prophets have a lot in southern said and
that is, you know, judges are three types and this was reported by NASA, or reported actually by Sun and tirmidhi also an
This was reported by Sun and he sallallahu Sallam said
probate judges are three types.
Well hang on for them now.
One will be in Jannah. And two will be in verify.
For levy for
family the agenda
has for the one who will be in Paradise is a man who knows the truth, and judges according
what I do, and
with regard to the other to a man who knew knew the truth, but transgressed, in his judgment, he will be in Delphi, what I do
for fun, and a man who judges between people with ignorance or upon ignorance, he will be also in hellfire. So, if that raise you is scary,
so two out of three or the Hellfire, and it should make people
reluctance should make people reluctant and hesitant to accept a position like this, where you know that the ratio is not really favorable.
So that's the
that's the part
then this excess, loving Sufi
Muslim man semi on bossier on Metallica, lemon
demon, it's prerequisites include being a free Muslim with intact hearing vision and speech was trustworthy and knowledgeable.
So, free Muslim man, you know, if a person was a slave, they can have full control over themselves, because someone owns them and the judge should certainly have full control over themselves, but the person who is slave can be me, so they can be appointed as the head of an expedition can be appointed also
for roles that are less than the judge, although they may include some judging
can certainly you know, he has to have eyesight, hearing he has to be able to speak he has to be trustworthy, he has to be hired and he has to be knowledgeable, and does that knowledgeable mean that he has to be much that had initially they said that, but at the end of the day, where are you going to find all those much time. So they basically, because the principle here is
so what can be done should not be basically
abandoned, because of that, which is unattainable because of unattainable standards, that that we place on ourselves. So if we make a condition, that judge must be much tired, and we don't have much study, and then we let the people just get each other, you know, settle their disputes among themselves. So this is going to be a problem. Now.
Two issues I want to talk about, and I do not want to forget, here, the issue of women being judges and the issue of,
you know, having people judge you without being judges,
because they are related to this point. So the judge has to have many conditions to become a judge.
But where if we disagree over like $50 in the market, for instance, what we always be able to pursue a judge, full blown judge to settle the dispute between us, or is there room here for the concept of packing and the concept of
arbitration? You could say arbitration Yes. That's how we usually translated
is there room here for the concept of
there is room for the concept of Turkey. And it is related to this point because the in the authorize the view of the 100 emails that have been hacked,
you know, in the passive voice market, not that mahakam
should actually meet the conditions or requirements of the judge.
What ends to be a little bit self defeating?
Because Where are we going to find all those people. So that is why the Melbourne and the mayor said the mahakam does not have to meet the conditions of the jobs. If we're in the market, we should just find the most knowledgeable and most trustworthy merchant in the market and go to him.
He may not meet the conditions and the requirements of the judge. But if that's the best option that we have, then we should
in fact, you know, debate of no more time was late to accepting Islam. Last Man on top ha
ha. They disagree the overland swap that they made among themselves in between Medina and Kufa and they went to debatable and more time to settle the dispute between them.
The chain is somewhat questionable, but largely accepted by the the story, we have another story where armor and obey and you see the humanity of the year but you see also the piety it's just like it's beautiful Norma and obey disagreed over the orchard.
We have some disagreements and a transaction,
just like automatic disagreement about a transaction, which tells you that even the Sahaba even Ultron was wrong, but then they can have these disagreements. So all
this agreement and the went decided
to settle the dispute between them. And this is one of Mara Sila chabi. Mata Sita shall be means the the reports that it shall be relates from the prophet or the Sahaba without seeing them. So there is a drop here, there is an
interruption between the shabby and the people he is reporting from, and Manasa shall be those reports by Shelby are certainly better than Mercedes Audi and Mercedes.
so shabby was better in his
although still there's, you know, controversy over mercy, but, but largely accepted that story is largely accepted by the
story of armor and obey, pursuing,
you know, the judgment of as either
you could say, as a myth now, but you know, of course, it is known to be scholarly, but do buy it up on Amazon is not necessarily known to be scholarly.
The Prophet sallallahu Sallam also met a man by the name of Edward hackerman. This was reported by a professor at Southern met a man by the name of Parker. And he said to him, in Allah what haka. Remember to come up unhackme Allah is the judge, why are you being called a haka the judge? Why are you being called? Why is your cornea what how come the father of an hacker
and the man set in autonomy,
Attorney, Attorney for Kobe to be in a home for the first time, my or come to
my people, when they dispute over something, they come to me. And I say that the dispute between them I judge between them, and they both parties would be pleased with my judgment. The Prophet sallallahu Sallam said to him,
how beautiful is that?
said to him. So what is the name of your eldest son, he, he told them to write. And he said to him, you are
you are apple.
That is not the same shirt I had that became a famous party, by the way of some of the great scholars said that but he's not the same Troy. The other Troy has, his name is Troy have not heard that franchise. But at any rate,
the idea here is that this concept of a game this concept of arbitration is a valid concept. Now, to not dumb it down all the way and not water it down. The person needs to have some knowledge, you should try to look for the best
one that is within your reach. You know if you have a dispute, try to look for the best one that is within your reach without also overwhelming the most knowledgeable in
town, because if everybody will go to the most knowledgeable in town, you know the they will be overwhelmed. But you try to find the best one within your reach
for this arbitration because Muslims should have that basically attitude, you know, if there is a dispute, let's find the third party, let's find a way to set up that this view. Regardless of you know, even if that's abuse is between spouses, let's try to look for someone to help us if we are unable on our own, to figure it out. So the the concept of tequila, the concept of arbitration, and as I said, although the authorize the view in somebody's mouth, is that the hacker hacker
should meet the criteria or requirements of the judge being evident to me, which is the
stronger position shows that the mahakam does not have to meet those criteria, otherwise, we will be
to be back to square one.
The other issue,
yeah, people can specialize in different sections of the law. But I would recommend that that's part of the importance of the segment. Also, anyone who does this, they need to read, they need to learn the section, it's about the dial and the unit and how to establish proofs and you know, which claim to be heard and when how to deal with different claimants and defendants and so on and so forth. It is important for anyone who will do arbitration, to be well versed in this area, in addition to the specific area that he will be talking about, or he will be judging
that's important. And now the other issue that they also wanted to talk about is the issue of women judges, because that is also a hotly debated issue of the ages that evolved. Women, in fact, they are hotly debated. But the issue of women judges,
let me give you a part of the positions here. And so the magic is sharper is the hand bellies said women cannot be
judges of any source.
remember hanifa said
women can be fixed up and
in a law, like hadoo that causes so
they can be judges in all matters, except in the say criminal law, criminal law.
And you have
more Mohammed bin Hassan, who is the student of
plus of poverty.
Plus, having a has
those three said they can be judges, in all cases, they can be judges, in all cases without exception. So that's the topology of positions.
Now, so what are they Why are they saying this? Where is this coming from?
I have to tell you, first to defend, you know, the positions, the mainstream position that women cannot be judges, because that is the mainstream position in Islamic law, the position of three men
also hanifa did not say that they can be judges, in all cases, he says, except in criminal law.
So the just put the things in perspective, they're not saying that this is because of spiritual deficiency, of course. And the proof on this, you know, they can't be imams for a particular purpose, not because of spiritual deficiency. They can't be judges for particular reasons not because of spiritual deficiency. Because as we saw before, when we talked about the amount here, remember, and that
After hours of Salah when we talked about email man said women cannot be demand for this, this and that. But there's no because of spiritual deficiency because women can be moved these and they have them and they have been, you know, in our history
many many men or women who were considered multis now, who is higher in ranking the man the judge or the Mufti?
Of course, some of these higher than the men and the judge. In fact, the judge refers to the movies, when when they are stuck, where you know, they ask them questions when they are stuck. So the movie is higher than the judge and therefore, the fact that we allow women to be movies
just completely debunks the the notion that they are barring them from being judges and from being demand for spiritual deficiency. It is untrue.
In fact, the moment of pain but clearly says
one moratalla conversion facility well, Amana what the annual find this in the footnotes. Thank you.
So the trustworthy woman is just like the trustworthy man. And truthfulness, honesty. And religiosity for that matter was for certainty what I'm what the
so it is not about spiritual deficiency, what is it about them, it is about the acumen, it is the aptitude, it is about being able to,
you know, first of all, the judge has to mix with other men and criminals, and so on and so forth. And it's not appropriate for a Muslim woman to mix with criminals, and people have, you know, such backgrounds.
And sometimes the judge has to be with Him alone, and so on and so forth. So that is that concern. The other concern is that they also cite that women are emotional. And the fact that women are emotional does not mean deficiency and then, or the fact in them, this is actually perfection, because that is what they need to be. And when women try to be like men, they lose that.
And then they lose their edge, they lose their advantage over men, you know, the idea that a woman can do, everything a man can do, is just a failed idea, it's just a bad idea. Because if a woman can do everything a man can do, then a woman will not be able to do everything a man cannot do.
That is the that is the whole thing. That's why we complement each other, not because women can do everything men can do, because women can do everything men cannot do.
And when they compete in this space of men, they lose their edge in their own space, they lose that tenderness, they lose the emotions, they lose, you know the femininity, that is the matrix of life, that is the joy of life. So, it becomes a problem because you would have you know,
you know, positive positive charges. They don't, they can't be together. So you have to have positive and negative charges to be attracted to each other anyway, but but that is the the side this part that being somewhat emotional on a judge needs to suppress their emotions.
They also cite something from the Quran, that that could be controversial and sort of Zakat of Allah subhanaw taala says, whether
How am I even have an idea of moving
money in a
So, whether what do these mean?
And when one of them is given the glad tidings of the birth of a female, that they have ascribed to the Muslim merciful, they have ascribed to the Muslims for that he has daughters.
His face turns dark, out of distress.
How am I you
Not sure often heavier
Samurai euro movie is one brought up
is one brought up in ornaments and who's an evident in conflict in confrontation? Who is timid and evidence? unclear in conflict in confrontation to be attributed to god that's, you know, comment on so
that's the meaning of the verse, according to the majority of the commentators is one who is brought up in Parliament's and is who is unclear
in confrontation to be attributed to God. Now, certainly you don't attribute to God sons or daughters, you know, it's not like you attribute sounds to God, but you don't attribute any of that to God.
Some of the scholars have either way, to you know, to be also
complete, some of the scholars said that this does not talk about women to begin with, at all they talks about the idols are yourself and Harriet your whole movie. It's the idols that they used to make out of heavier demons to make idols out of silver, or, you know, so they would get the ornaments and basically melt them and make idols out of them. So they make idols out of these ornaments were often for Samia vital movie.
That's, of course,
you know, the idols are unclear in confrontation, because they don't speak. So it's obvious, some of the scholars said that this refers to idols does not refer to women.
these are three different positions. Now you have for this is that they probably have positions. Now you have HD have that would say that this is dependent, that this even this, these fatawa are dependent on
circumstances at different times. Because also the strongest proof on the side of the demoed is that the profit that has rightly guided Felipe has never appointed a woman as a judge. The armor it was that armor appointed a woman has a moccasin. She was basically go to the markets and enforce laws in the market market, but not as a judge. So this is strongest proof on the side their side. So some of the HD
and they actually build it on some talk.
Even, you know, Scotty Jamal, for instance, when he talked about and now he's not particularly friend of everything, man, but
he respects him as a puppy, I guess.
But when he talked about the Shahada, women's
all the new words that are coming out from having the mayor's
not only here, but mainly anemia, because he's the one who was basically most prominent,
and also mostly sort of clear in his arguments.
So everything man was talking about the Shahada of the woman and the fact that the shadow of the woman, he inferred that it is circumstantial, that because women were not they did not have the business acumen, for instance, to understand contracts and to be witness to those contracts.
Contemporary scholars are understanding or some not, of course, not all, but some contemporary scholars are understanding from this, that when they have the business acumen, they can become
basically witnesses and judges, for that matter. Anyway, that's just the basic, quickly the different positions on on this issue.
Next to the six as well.
This way, the mymail Aamir Khan, you the
one more problem than Happy escalada
He showered me with a manner. Okay. He may not accept a bribe, nor May he accept a gift from someone who was not in the habit of giving him gifts before. He may not judge before knowing the truth. And if he has any difficulty he should consult with the people have knowledge and trustworthiness. Okay. So a judge, of course, a judge cannot accept a bribe. That's not the point. That's like a given. But he said, mentioning it. He just wanted to extrapolate from this and go beyond this, that oftentimes, you know, oftentimes judges accept bribes. You know,
but he wants to say that oftentimes judges accept gifts, or sometimes judges accept gifts, which are disguised bribes. These gifts as Judge should not accept a gift, except from someone who was in the habit of giving him gifts before and it would be the same sort of type of gifts. So if you're aren't used to give you gifts before you become a judge, you don't tell her No, I'm a judge. Now I don't accept gifts. So you could take the gift of though your honor can be you know,
one of your clients at some point to
a defendant or a claimants and stand before you at some point, a judge may not judge you may not adjudicate a case in which his spouse or
ancestors or descendants are party.
But a judge may adjudicate a case in which his aunt or his even brother, his party him,
he is barred from adjudicating cases in which his spouse, his ancestors and his descendants, he can be a judge in such a case.
But anyway, so he cannot accept any gifts except from someone who was in the habit of giving him gifts from before, he may not judge me for knowing the truth and if he has any difficulty, he should consult with the people of knowledge and trustworthiness.
In fact, in the in the past, they used to have people from the different like multis from the different Riverhead attend with a judge
to basically give him counsel when he needs it. They were very polite, they would not interfere. But he would give him counsel,
on demand on PRN basis, if you're in the healthcare field, so on demand.
This is a good habit and the judges when they went to town, in the past, what they did is, you know, they weren't commissioned by the authorities to go to this town to be the judge in this town. So they would go into town, but before they arrive, they would have sent to the scholars of this town
to inform them, that they have been commissioned to be judges in this town, so that those colors will go out to meet them with the rest of the people that used to go out to meet the judge at the entrance of the town at the gates or entrance of the town. So when the judge comes in for the first time, he is being received by people from the town including the main scholars of the town, so that there is familiarity with
establish a baseline and have this familiarity with the scholars and the town. And then they would provide them counseled, certainly they would not interfere, even if they were more knowledgeable, but they will provide counsel when counsel is solicitor.
So he should consult with the people of knowledge and trustworthiness. Then the SEC said, Well,
what if he had an amnesty or he must not pass any judgment while he's angry, or in any condition that would prevent him from fully employing his intellect,
any condition that that is a polite reference to
happen, you know, he has to go to the bathroom. He's too hungry. He should not pass a judgement when he's too hungry when he has to go to the bathroom. You know, he has to be able to he has to be in a condition
of his equilibrium and being a condition of just complete togetherness. He has to be completely together
before he passes judgment
Certainly this is the hub that will impede
cloud confound your judgment, not the not the leader,
or the mind or that will not impede your judgment because obviously, you know, when you are in the midst of all of this and you have claimants and disputants and defendants and disputation and you get a little angry sometimes so you know, people whose manners are terrible, so you get angry sometimes, but that little anger is not going to cloud your
intellect. Then the SEC says, what I imagined isn't help me but weapon where the ball
was mine If it the holy Allah, He will not do this. He will.
He must not use a doorman for the courtroom.
That is basically to not allow all people to come in. But certainly you know, these things evolve with time. These things evolve with time.
And if there is a need for a career for the doorman, then that is fine. But the concept is the concept is don't prevent people from coming in, to basically complain and to seek justice. That is why he says don't have a doorman. So allow everybody to come in and talk to you if you are the judge, but you could hire a doorman, but you could instruct the doorman to allow people to come in who have issues.
And when he says that he must treat the two living litigants equitably in terms of admission into his room seating and the manner in which he addresses them. And the manner in which he addresses them. equitable treatment of the claimant and defendant or the two litigants should be
and this is basically one of the hallmarks of
third party advocates of judges, he has to be even handed if he calls someone Sir, he calls the other person Sir, if he looks even, you know, there is a difference controversial, what do you sell even at home, I feel at the end, he should be even handed with them in his gazes and his words. So if he looks at someone, in a way, he has even handed in the way he looks at them, and in the way he speaks to them
completely even handed in this respect. That brings us to the end of the first part, the first chapter in the book of the judiciary. inshallah, after
a 10 minute break, we will start the following chapter chapter on the manner of judging,
which is the occipital for court proceedings, court proceedings.
From the use of doormats, and
the use of security guards.
The Prophet sallallahu Sallam said,
hello to him,
whoever, whoever is in a position of
whoever works for us as an agent, and keeps himself up means means what keeps himself from the people and their needs, did not listen to their needs,
what can lead to him which means their distress
and so on? Allah subhanaw taala will not listen to him in his time of need and the stress and so on. So this is basically to tell people in these positions that they must not
bar the public from
seeking justice or counsel or
so so the bottom, you know, the bottom line is, if you will have to have a security guard. The security guard should be instructed to treat the people compassionately and allow the people who have needs to come in.
But at the end of the day, we have to also be pragmatic because in our times you cannot not have to
security guards. Do you know that, you know, the three out of our four
were killed because they didn't have security guards.
two of them were given the master because they did not have security guards. So you could easily anyone can easily basically reach out and kill them. And that's three out of our writing over calibers were killed in this manner because they didn't have security guards and almost man refused to have security guards. Even when
even when he was offered the content and proceeded to be a security guards in many of the Sahaba he refused to have security guards that may be righteous noble this and that. But at the end of the day, it creates havoc.
If the head of state will be killed, you know with this ease,
it creates havoc. It's not like it what it did. Yeah.