Ismail Kamdar – The Role of Qadhis in Shariah
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One of the questions that came up from
last week's Khutba,
and we spoke about fatwa, and we said
the fatwa is non binding. The
The question arises
then, what is binding?
How do you enforce laws under Sharia?
And that brings us to this week's topic.
This week's topic is about the role of
the party of the judge in an Islamic
land.
And, the short answer is
a law or a fatwa
can be combining
in a sharia land in 2 ways.
The first way is if the Khalifa or
Sultan makes it the law of the land.
Right? So, he passes a Hukam based on
the Fatwa of the Mufti.
The second way is if the Adi
judges based on that fatwa.
So if a judge makes a judgment based
on a specific fatwa,
then that judgment becomes binding on whoever
he made the judgment for. So today, what
we're going to look at is what is
a body and what is the role of
the body in sharia, and we look at
a couple of historical examples of this. And
I should start off by stating
that
from my understanding of Sharia,
the body may be the most important person.
More so than the Khalifa,
more so than the Mufti.
Because
without the party,
there's no
practical application of the Sharia in the daily
lives of people.
The Mufti states opinions.
The opinions are not binding.
The Khalifa
administers the Kingdom and fights the wars,
but he doesn't really have a say in
what is the Sharia.
It's the Qadi
who
will enforce a law, a judgment between people.
And this is why, historically,
every Hilarapat
had bodies,
but also non Hilarapat had bodies.
Sultanates,
kingdoms, and many other types of communities
that were not under a haditha still had
a body system so the Sharia was still
at play. So what is the body
and what is their role in the Sharia?
The word body means judge.
Right? A party is a judge. A very
similar but different to the judge in a
modern system.
In a modern system, law is very complicated.
Right? If you need to go to court,
you need to go through a lawyer
because the law is very complicated. You need
a lawyer to understand you, to to speak
on your behalf,
to really be able to,
get through all the details.
That's not how it is under Sharia. In
Sharia, the law is very simple. Anyone can
understand it.
Right? The law is very simple. Anyone can
understand. If you have a dispute with someone
and you're not sure what's the right thing
to do, you just speak to your local
Mulana Mufti and they explain it to you.
The law is simple enough for anyone to
understand. And this is why in Sharia, there's
no lawyers. There's no lawyers because the law
is simple enough to anyone to represent themselves.
Right? Number 2,
the judge is accessible. This is a key
difference between the Sharia and the modern court
system. In In the Sharia, the judge is
accessible to everyone.
In most
of our
historical kingdoms in Islam,
the judge would have his office in the
Masjid.
Right? So imagine a complex like this and
near the door to the Masjid is a
small office that's for the judge, and he
has his office hours. It'll be, like, from
Fajr to Zuhr or from Zuhr to Maghrib,
we'll have his office hours. And during those
office hours, anybody
can come and see him for judgment.
Anybody.
Man, woman, free person, slave, Muslim, non Muslim,
it doesn't matter. If somebody has a problem,
if somebody has a dispute, if 2 people
are arguing whether it's over marriage, whether it's
over inheritance, whether it's over custody,
whether it's somebody stole something, whether it's a
business issue, anyone can go to the party
and the party's judgment becomes binding on them.
So the people will go to a body.
They'll sit with them. They'll present their case.
The other side will present their case. Both
sides will present the evidence, and the colleague
will rule based on the Sharia.
The colleague, in general, you would be a
qualified scholar. Right? And so what you'll find
is there would be a career path in
the Islamic Empire
that someone would go study in a madrasa,
become a alim, they would then work their
way up, they'll be a teacher, they'll be
an alim for a small town. They'll work
their way up. The highest position being the
Chief Quality. The Chief Quality in the Abbasid
Empire
is the one who makes judgments
that the King follows.
Right? In the Ottoman Empire, they were called
the Sheikhul Islam.
The Kawdi did a few interesting things about
them. Number 1,
usually the Qadhi would be a person from
the community.
So he understands the culture of the community.
He understands the norms and practice of the
community. He knows everybody in the community
and his judgments would be to maintain peace
and harmony within that community. That will always
be his number one goal,
to maintain peace and harmony within the community.
And so when people come to him for
disputes,
he wouldn't just look at what does the
law say,
but how can we resolve this in a
way that maintains the peace and harmony of
the community.
So when it comes to Sharia,
this role, the role of the body is
central for the application of Sharia.
Even when there's no Khalifa,
if a community has a Qadhi system, a
Qadar system that they take seriously and that
the Muslims follow, and people take the the
judgment of the body and binding upon themselves,
the Sharia
will will be in place.
This is the most important role within the
Sharia system.
To give you a couple of historical examples
of how important the party is, let's take
a look at 2 Ottoman parties who are
very important. 1 in the history of the
Ottoman Empire and the other in the history
of South Africa.
Right? So let's start with the first one,
Abusoud Afendi.
Abusoud Afendi, Rahim Mahullah,
was the Sheikhul Islam at the time of
Suleiman the Magnificent.
For those of you who don't know, Suleiman
the Magnificent
was considered the greatest
of all the Ottoman kings.
His reign was the peak, the golden age
of the Ottoman era.
When he was the Khalifa,
the Ottoman Empire was the most powerful empire
in the world
with over 25,000,000,000
citizens
spread across what is today more than 20
countries across Europe, Asia, and Africa.
It was the largest, the most powerful, the
mightiest empire in the world at that time.
And he
appointed
Abu Saud Afendi as the shirkul Islam of
the empire.
The shirkul Islam's fatwas
are binding even on the Khalifa himself.
Meaning,
if the sheikhul Islam tells the Khalifa that
so and so is a traitor and they
have to be executed, they will use that
fatwa to execute that person. If the sheikh
ul Islam tells the the the the Khalifa,
then you cannot wage jihad against that country
because we have a peace treaty with them,
and they have to listen to the Sheikh
of Islam. It's a very powerful position.
And, he used this position
to do a number of very important things.
So, for example,
Suleiman, we know him as Suleiman the Magnificent.
Right? But he has another title. His other
title is, Suleiman Al Khanuni, Suleiman the lawmaker.
Because in his reign,
Ottoman canon law was
was, written down and was basically canonized. Right?
The Ottoman law was canonized his reign, and
became known as Suleiman al Qarnuni,
Suleiman the lawmaker.
But years old, people don't realize Soleiman
did not make the laws.
Soleiman simply
delegated this process to Abu Soodafeni. He simply
said, Abu Soodafeni, you are the share of
Islam. You are the most knowledgeable person about
the Sharia in this kingdom. You do this.
And Abu Sulefendi is the one who drew
his various fatwas and judgments.
He basically came up with what we call
the Ottoman Canon Law. Ottoman Canon Law is
basically
any issue that the Sharia is silent about,
the Ottomans had their own laws for those
issues.
Right? There are a lot of things that
Sharia don't talk about, so the Ottomans had
their own laws to deal with those issues
and that became Ottoman Canon Law and that's
what Abu Sulefendi
put together.
Another example of Abu Sulefendi
and how he used his position as a
party
to bring
about peace and justice and solve problems in
the community. So very interesting case,
at the time of Suleyman the magnificent, one
of the
problems that existed in society
was secret nikas.
Right? This had become a big problem
about 500 years ago.
Women following the Hanafi opinion that they don't
need the permission of their wali to get
married, were getting married secretly.
A lot.
This was causing problems with inheritance law, was
causing problems with lineage, caused problems that you
don't know if 2 people are married or
committing sinah.
It's actually a problem that happens in our
community as well, right? But at the time
of Soleiman, it become a big issue,
so Abu Saud Avedi
made 2 judgments that became binding on the
Ottoman Empire. They became the hukam of the
Ottoman Empire. These two judgments both worked
to fix this problem.
The first judgment he made is he said
in the Hanafi Madhub, there's a difference of
opinion
on whether a woman needs the permission of
her wali to get married or not.
He said that under ottoman law,
she needs the permission of her wali to
get married.
So you can't follow the other opinion if
you're living in the Ottoman Empire. So in
doing this, he curbed the secret Nikas.
Right? Because this was the loophole for secret
secret nikka. My father doesn't need to know.
Right? So he said, no. Okay. The Hanafi
madam did a difference of opinion, but the
Ottoman law, this is the state law. Your
father has to be there. Your father needs
to know. Right? That's the first step he
took to curbing the problem of secret nikas.
The second step,
very interesting,
Abu Sauda Beni
came up with the idea
of the nikas certificate.
Today, we know the nikas certificate is normal.
Anywhere in the world you get married, you
have been married to the picket. Right?
Historically in Islam,
a marriage was a verbal contract
in front of 2 witnesses.
Right? So simply, you would have to share
the the the groom, the girl's wali, and
2 witnesses, and it's verbal contract.
Abu Sulefendi said, let's standardize
this. Let's make sure we have a way
to prove that 2 people are married. So
he said, from now on, anyone who gets
married in the Ottoman Empire needs a nikka
certificate,
stamped by an official body
in the official Ottoman record books,
which means
any nika that takes place has to be
at least known to the party. Therefore, it's
not secret, it's public
knowledge. Right? So by enforcing
when there's a difference of opinion or whether
a woman needs a wale or not, by
enforcing the opinion that she that she does
and by inventing a concept of a marriage
certificate,
Abu Saud Abendi
was able to
curb the problem of secret nikaz within the
Ottoman Empire.
Again, you see how important the role of
the body is. How his judgments become binding.
How he's able to use that position to
solve the problems of the Gumba.
One very interesting thing that Abusole Rebendi did
that a lot of people are on the
way of,
he's the one who popularized the idea
of the Ottomans being a Khilafat.
So before this time, the Ottomans were known
as a Sultanut. They were known as sultans.
People did not accept them as Khalipas because
they were not Qurayshi Arabs. Right. There is
a hadith that says the Khalifa has to
be from the Quraysh and many Muslims consider
this hadith to be binding, to be wajib.
So in the early years, people did not
accept
the Ottomans as Khalifa. In fact, right now
today, many Muslims do not consider them Khalifa.
They consider them a Sultan. Right? Because they
follow that opinion.
I was sort of offended at something very
subtle to solve this
problem. He was the party for 25 years.
In these 25 years, anytime we refer to
Suleyman the magnificent,
we he referred to him as Khalifatuh. The
as Khalifa.
As the Khalifa of this Umma,
Suleiman the
So imagine for 25 years, the sheikhul Islam
is calling this man the khalifa.
He doesn't write a book about the topic.
He doesn't go into all the fiqh and
all the differences of opinion. He doesn't go
into explaining why this hadith is not applicable
to our times. He simply
popularizes
the standardization
of calling the Ottoman ruler the Khalifa.
So before Abu Saud becomes the, Sheikh ul
Islam,
Suleiman and his father referred to themselves as
Khalifas. Not before that. Right? Suleiman's father conquered
Jerusalem and Mecca and Medina from the Mamluks,
so he started calling himself the Khalifa.
Lead to the subtle process of the judge
always calling Suleiman the Khalifa. So by the
time they both pass away, it's now an
entire generation has gone by to call them
the Khalifa.
To such an extent that now 100 of
years later, we refer to them as the
ultimate Khilafat. And we don't refer to them
as the Ottoman Sultanate.
When the empire collapsed in 1924,
we call it
the collapse of the Khilafat. Right? Abu Su'lafendi
is the one who popularized this term.
So we see from all of this that
the Adi is central to the Muslim empire.
The Adi's judgments are what is binding. The
is the one who can enforce a law.
The is the one who has great influence.
And we end with another very fascinating
example of how important the Adi is.
Under Sharia,
the Adi is so important. More important than
the Khalifa to such an extent that even
lands where there was no Khalifa, they made
sure they had a body.
I'll give you one example relevant to our
own lives.
200 years ago in South Africa,
the early South African Muslims,
a mixture
of Sharfis from the from the valley from
the Malay Islands
and Hanafis from India. Right? So we have
Hanapese and Sharpese living together in South Africa.
Fake disputes arise amongst them.
Right? A lot of fake disputes arise amongst
them. They start to argue with each other.
They start to fight each other. What what
law do we follow? Whose opinion do we
follow? Who's right? Who's wrong?
The leaders of the community
write to the ottoman empire.
Send us someone to solve our problems.
Send us someone who the people will listen
to, the people will take seriously. Someone whose
opinion is binding.
Even though
South Africa was a British colony, completely outside
of the Ottoman Empire,
The Ottomans send a body by the name
of Abu Bakr Rafendi, a descendant of Rasoulullah
Sallallahu Alaihi Wasallam, to South Africa.
He becomes the Qadi of South Africa,
his opinions become binding on the Muslims of
South Africa, he unites the Sharfis and Hanafis,
and he plays a major
role
in producing the earliest madrasas in the history
of South Africa, the earliest Islamic
Hanafees and Sharafees can live together in peace.
So this is why I say, when it
comes to the Sharia,
the Adi is the most important role.
Because the Mufti gives you opinions.
The haditha protects the borders,
but the Adi is the one that solves
disputes. The Adi is the one that people
listen to. The Qadhi is the one whose
opinion is binding upon you to follow.
And this is why, when the Khalafat was
abolished,
one of the first things that the British
and the French and all the colonizers did
is, they got rid of the Qatar system,
and they brought in the Western court system
with the lawyers and the paperwork and the
bureaucracy.
They complicated everything and they completely
got rid of the system of using the
bodies or in some countries, they reduced it
to only swapping family disputes. Right? Either in
some countries, they got rid of it completely.
In other countries, they reduced its role where
the party only plays a role in solving
family disputes. Everything else has to go to
a secular court system.
And so the revival of the Sharia,
really one of the most important priorities would
be the revival of the Qadar system.
So this is why I say the Qadhi
is really the most important figure in the
Sharia
and we ask Allah to allow us
to understand our religion properly and to apply
properly.
If we had
to try and figure out a road map
back to reviving
Sharia,
It may be a bit far fetched to
think of a Hilafat right now.
Even the Ottoman Empire itself took 300 years
to become a Hilafat.
Right? When the Ottoman Empire started it was
a it was a small little sultanate. It
was just a few towns
and it took 300 years before they could
call themselves a khilafat.
This is why it's a bit unrealistic for
people to think that you can have an
instant khilafat. Right?
It may be more realistic
to try and find a way
to revive the Qadar system.
To to revive the system of having bodies
who's
who are trained properly, who understand the community,
who understand the culture, who want to maintain
the peace and harmony between the people, and
whose judgments people take seriously and consider binding
on themselves.
If you're gonna divide this system,
Muslim communities around the world,
what essentially today they call Sharia Courts.
This
could
be a major step forward into reviving the
Sharia
and into making it come alive again. Instead
of it being something we just talk about
and something that is written about in the
books, it becomes something that we follow again.
Because when it comes to certain aspects of
life,
whether it's family
or inheritance
or business
or even maintaining good relationships with your neighbors
and with your community.
The laws of the Sharia
are the best laws for all of this.
The Sharia has within it a system
that is designed to create a community that
is just, that is peaceful, that is safe,
where people care about each other, where people
do what they can to help each other,
and where
that
there's always a way to try and bring
people back together.
Now I mentioned earlier that the role of
the party is to maintain
peace within the community.
Linking it back to a topic we mentioned
2 weeks ago,
when it comes to Islamic criminal law, the
Hudud,
the parties are actually taught
to avoid applying the Hudud as much as
possible.
That if you go your whole life forever
applying to doing a good job.
Because the role of the party is not
to punish people.
It's to maintain peace and justice in the
society.
You know, so for example,
some people have this idea that if somebody
steals the apple, you grab their hand and
you chop it off. That's not Islam.
The hand is only amputated for professional thieves
that stole very expensive things.
In reality, if somebody stole the apple and
you took them to the party, the body
will say give it to him in charity.
He's hungry. He's more worried about peace and
justice
than about applying the law to his severity.
Right? This is the actual role of the
body. It's about peace and justice. It's about
community.
It's about making sure that people care about
each other and are united.
This is how they deal with marriage problems.
This is how they deal with, with theft.
This is how they deal with problem between
neighbors.
That the primary concern is the community.
So the revival of the Sharia,
perhaps one of the more important ways to
do it is to revive the Qadar system.
When the Sharia was dismantled,
it wasn't just the Khalafah that was removed.
The ulama,
we stripped away of their power.
The Waukaf system, we'll talk about that in
the upcoming weeks, was completely destroyed.
Right? Just a 100 years ago, 60% of
Muslim land was Okav.
60%
of Muslim land was Okav. That's That's one
of the first things that the British and
the French sought to destroy.
The Coloss system completely dismantled. The Muftis reduced
to their opinions being of no value.
They destroyed all of these different systems. Our
problem is you're only looking at one system.
You're not looking at all the others.
Reviving the old path is just as
important. Reviving the Qadaw system is just as
important.
We need to find ways to get these
going. I think it's more realistic
to focus on reviving these than jumping straight
to reviving the Khilafat because all of these
work together. And, really, if you have a
proper Qadar system, you can live a Sharia
compliant lifestyle
even if you are unable to live in
a Khilafat.
So, this is something for us to think
about. It's some again, another aspect of the
Sharia that's missing today and that's greatly misunderstood
by people and it's something that when you
understand it,
your love for Islam increases, your conviction that
this is from Allah increases, your conviction that
this is the best system of law increases,
so so I highly recommend to learn more
about this system and how it worked in
the Muslim empire and the amount of peace
and justice throughout the world and how accessible
they were and how easy it made life
for the average person
and why it's important for us to try
and revive the system today. We ask Allah
Subhanahu Wa Ta'ala to accept from us our
efforts. We ask Allah Subhanahu Wa Ta'ala
to grant peace and victory to the Muslims
of Palestine.